On June 25, 1992, the Church of Scientology of Toronto and Jacqueline Matz were each convicted of two counts of breach of trust contrary to s. 111 of the
Criminal Code,
R.S.C. 1970, c. C-34 (now R.S.C. 1985, c. C-46,
s. 122) following a trial before Southey J. and a jury. The Church of Scientology of Toronto was fined $250,000 and Jacqueline Matz was fined $5,000. The Church of Scientology of Toronto appeals both the convictions and the sentence. Jacqueline Matz appeals the conviction only.

The charges arose from activities conducted by the Intelligence Bureau within the Guardian's Office, a management arm of the appellant, Church of Scientology of Toronto. Between 1974 and 1976, Scientologists secured employment with government agencies perceived to be enemies of the Church, and signed oaths of secrecy as public officials. In breach of their oaths of office, they then took copies of confidential documents from the agencies that employed them and provided them to the Church of Scientology of Toronto. The appellant, Jacqueline Matz, was a "Case Officer" and "Director of Operations", and was responsible for supervising the agents who had been planted in the various government agencies and other organizations.

B. Verdict at Trial

The indictment originally included twelve counts, consisting of seven counts of theft and five counts of breach of trust. The theft counts related to theft of documents from government agencies and other organizations. The breach of trust counts related only to government agencies. As a result of a pre-trial ruling excluding certain evidence under
s. 24(2)
of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the
Canada Act 1982
(U.K.), 1982, c. 11, the Crown was left with no admissible evidence on the theft counts. These charges were severed from the indictment, and acquittals were entered. The jury convicted the appellants of breach of trust in relation to the Ontario Provincial Police and the Ministry of the Attorney General of Ontario. The appellants were acquitted on a second count involving the Ontario Provincial Police and on charges relating to the Metropolitan Toronto Police and the Royal Canadian Mounted Police.

C. Theories of the Parties

This was a long and complex trial in which virtually everything was in issue. Many of the same issues now form grounds of appeal. In summary, it was the position of the Crown that the appellant Church of Scientology of Toronto, a non-profit religious corporation, had authorized members of the Church to infiltrate government agencies and other organizations such as the Canadian Mental Health Association in order to obtain information that would be of use to the Church. It was the Crown's theory that the appellant perceived that it was under attack by these organizations. The appellant resorted to the "plant" operations when other more direct means, such as break and enter, were judged to be too dangerous. These operations were run by Jacqueline Matz out of the Intelligence Bureau, which was an arm of the Guardian's Office within the Church. The Crown relied on the doctrine of corporate criminal liability as explained in
Canadian Dredge & Dock Co., Ltd. v. The Queen,
1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662, which, subject to certain conditions, holds a corporation liable for the acts of certain of its agents.

It was the position of the appellant, the Church of Scientology of Toronto, that it was not legally responsible for the actions of its "renegade members" in the Guardian's Office who had failed to follow Church doctrine. The appellant contended that the information-gathering functions carried out by the Guardian's Office in Toronto were assigned to it by the Church of Scientology of California (U.K.) (Guardian Office World Wide), not by the Church of Scientology of Toronto. The appellant also made the broad submission that the doctrine of corporate criminal liability does not apply to non-profit religious corporations.

The appellant Matz did not testify. The theory of her defence was based on gaps in the Crown's case with respect to each of the counts. In relation to the charge involving the O.P.P., she argued that there was no breach of trust since the information obtained by the agent was unimportant. With respect to the count involving the Ministry of the Attorney General, she argued that the Crown's evidence was unreliable and that, in one of the incidents relied on by the Crown, no confidential information seems to have been obtained.

D. Corporate Management Structure

A critical aspect of this appeal concerns the application of the doctrine of corporate criminal liability to a non-profit religious corporation. The application of the doctrine is complicated by the unconventional corporate structure adopted by the various corporate members of the Church of Scientology, including the Church of Scientology of Toronto.

At the time material to this case, the Church of Scientology was a world wide organization with a hierarchical structure. L. Ron Hubbard, the Founder, stood at the top of the hierarchy in England. Second in command was Mary Sue Hubbard, the Controller. Directly beneath her was Jane Kember, the Guardian. Below these officials, Scientology organizations were separately incorporated in various cities throughout the world. The Church of Scientology of Toronto was one such organization.

The Church of Scientology of Toronto was incorporated as a corporation without share capital on September 8, 1967 under theOntario
Corporations Act, R.S.O. 1960, c. 71 (now
R.S.O. 1990, c. C. 38). The administration of the corporation and, indeed, of all Scientology organizations, was dictated by a series of policies written by the Founder, L. Ron Hubbard. These policies governed a variety of administrative matters, including the command and communication channels, the positions within the organization and the division of responsibilities among Scientology officials.

The Church of Scientology of Toronto was managed through two command structures. The FLAG Bureau, which was part of the Sea Organization, was responsible for the day-to-day delivery of Scientology services to the public at the local Toronto organization ("Org"). The Org was under the management and control of an Executive Director. The Executive Director received direction from his seniors in the FLAG Bureau network, who received direction from L. Ron Hubbard.

The other management structure was the Guardian's Office. Its purpose was to help L. Ron Hubbard enforce and issue policy to safeguard Scientology organizations. Like the FLAG Bureau, the Guardian's Office was run along hierarchical reporting lines. The Guardian's Office Toronto reported to the Guardian's Office Canada, which in turn reported to the Guardian's Office World Wide, and ultimately to L. Ron Hubbard. Directions were sent "down-lines" through the same structure.

Like the Guardian's Office World Wide and the Guardian's Office Canada, the Guardian's Office Toronto was comprised of four bureaus, each of which was delegated a specific sphere of managerial authority. These bureaus were: the Legal Bureau, the Finance Bureau, the Public Relations Bureau and the Intelligence Bureau. The purpose of the Intelligence Bureau was to find out about those whom L. Ron Hubbard had identified as Scientology's enemies so that attacks could be diverted before they became public issues. When he established the Guardian's Office, L. Ron Hubbard issued a policy letter entitled "The Guardian", which assigned intelligence functions to that office, and described the purpose of intelligence in colourful terms:

By such studies one can predict which way cats are going to jump and organize to meet situations which may threaten Scientology from possible enemies or to take advantage of situations which might benefit Scientology.

The Intelligence Bureau of the Guardian's Office Toronto carried out the plant operations that were the subject-matter of the charges.

On the theory of the Crown, while the two management structures, the FLAG Bureau and the Guardian's Office, had different functions, both were integral to the operation of the Church of Scientology of Toronto. Although the local Guardian's Office took direction from, and reported to, its senior officials in England, it exercised a senior management function within the local Church. The management of the local Org could not tell the Guardian's Office what to do; in contrast, the Guardian's Office could, and did, give orders to local management regarding the safety and security of Scientology. The operations of the Guardian's Office Toronto were financed by money collected by the local Org.

On the theory of the appellant Church, the Guardian's Office was separate from the Church of Scientology of Toronto. It was autonomous and self-ruling and not fixed to any local Church of Scientology. It had its own doctrine and policy. In particular, the appellant argued that the intelligence operations were conducted secretly, without the knowledge of the Church of Scientology of Toronto.

E. Crown Witnesses

The main witnesses called by the Crown at trial were five former members of the Church of Scientology. Four of these witnesses occupied senior management positions in the organization at the time of the offences. They participated in and, in some cases, directed the illegal activities of the Guardian's Office Intelligence Bureau. They testified under the protection of immunity agreements that required that they disclose fully and truthfully their knowledge about the offences before the court. These witnesses were:

(i) Bryan Levman, former Deputy Guardian Canada who was responsible for all of the activities of the Guardian's Office in Canada;

(ii) Emile Gilbert, former Executive Director of the Church of Scientology of Toronto who, after being removed from this position in the Church, became an agent for the Guardian's Office Canada;

(iii) Kathryn Smith, who worked as a plant at the Ontario Provincial Police for the Guardian's Office Canada Intelligence Bureau;

(iv) Dianne Fairfield, who held various positions within the Guardian's Office Canada Intelligence Bureau; and

(v) Marion Evoy, Deputy Guardian Intelligence Canada who was responsible for the direction of the individuals who were plants in organizations at the time of the offences.

The above witnesses testified about various matters, including the corporate management structures within the Church of Scientology of Toronto; the role and function of the Guardian's Office within the Church of Scientology of Toronto; the structure and functioning of the Guardian's Office Intelligence Bureau; and the specifics of the plant activities that were the subject-matter of the charges.

It is unnecessary to set out in detail the evidence of each of these witnesses. However, the evidence of Bryan Levman was of particular importance to the Crown's theory of corporate liability, and requires some elaboration. Mr. Levman established the first Guardian's Office in Canada in 1970 when he was appointed Assistant Guardian Toronto. At that time, the Church of Scientology of Toronto was the only Scientology organization in Canada. The Guardian's Office Canada was under the authority of the Guardian's Office United States. In 1973, the Guardian's Office Canada was removed from the authority of the United States and began reporting directly to the Church officials in England, Church of Scientology of California (U.K.). Mr. Levman became the Deputy Guardian Canada and reported to the Guardian World Wide in England.

Between 1971 and 1973, there was no separate Guardian's Office Toronto. The Guardian's Office Toronto was established late in 1973 and was headed by an Assistant Guardian. The offices of the Guardian's Office Canada and the Guardian's Office Toronto were in the same building in the Church of Scientology premises in Toronto. Most of the work conducted by the Guardian's Office Canada related to the Church of Scientology of Toronto. Although official appointments of staff to the Guardian's Office Toronto came from the Guardian's Office World Wide, they were selected from individuals working in the Toronto Org.

As required by the
Corporations Act, the appellant Church had a board of directors. In the early years, senior officials within the Church held positions on the board. Mr. Levman, for example, was president from 1969 to 1973. Mr. Levman testified, however, that the board of directors exercised no executive or management function. According to him, the corporate structure as set out in the filings for government purposes was irrelevant. The true management authority lay in the Guardian's Office and the FLAG Bureau. Further, the choice of directors was made by the Guardian's Office.

As noted above, within the Guardian's Offices Toronto and Canada there were several different bureaus including the Intelligence Bureaus. Although the Intelligence Bureau of the Guardian's Office Canada was responsible for Canada-wide intelligence gathering, most of the intelligence operations were focused in Toronto. The Canada Intelligence Bureau therefore worked closely with the Toronto Intelligence Bureau. The Deputy Guardian Intelligence Canada, Marion Evoy, reported to the Deputy Guardian Canada, Bryan Levman.

In June and July of 1973, Mr. Levman went to the Guardian's Office World Wide in England. While there, he confirmed that the intelligence-gathering techniques could include "rip-offs", that is, the placing of agents and the theft of files. The Guardian World Wide, Jane Kember, identified targets. She was particularly interested in the O.P.P., the Ministry of the Attorney General and the Metropolitan Toronto Police. She made it Mr. Levman's mandate to obtain files from these organizations. After returning to Canada in the fall of 1973, Mr. Levman took steps to implement the Guardian's instructions. He evaluated candidates to be planted in the "enemy" organizations. The plant operations were under the purview of the Intelligence Bureau of the Guardian's Office Toronto. Mr. Levman and Ms. Evoy both received reports on the activities of the plants.

An important event leading to the use of plants rather than more direct illegal means was the arrest of Alan Coulson and Michael Chornopesky in April 1974. They were arrested while attempting to break into a law firm that was acting for former members of Scientology who were engaged in litigation with the Church. Levman had ordered this break-in as he was to be a witness on an examination for discovery the following day. When the examination for discovery took place, Levman was asked if he knew Coulson. Levman lied and denied knowing him. Mr. Levman and others took elaborate precautions to erase any connection between Coulson and Chornopesky and Scientology. After this incident, Jane Kember instructed Levman and Evoy not to conduct break and enters. Instead, they were to plant trusted Scientologists within the enemy organizations.

The Crown also called as witnesses individuals from the various organizations that had been the targets of the plant operations. These individuals testified about the employment history and duties of the individuals whom the Crown alleged to be Scientology plants. In addition, in many instances, these witnesses were able to confirm that their confidential files did, in fact, contain documents and information that other Crown witnesses reported having been obtained by Scientology plants.

F. Defence Witnesses

The appellant Church called a number of witnesses at trial, including the former Guardian World Wide, Jane Kember. She testified that she authorized the illegal activities that were carried out by the Guardian's Office Toronto. The bulk of her evidence, however, was that these illegal activities were a fraud on the Church of Scientology of Toronto and the other Churches of Scientology. She testified that she abused Church doctrine and the original mandate set out by Mr. Hubbard in "The Guardian". She drew a distinction between the Church of Scientology of Toronto and the Guardian's Office. It was her view that the local Church could not authorize the Guardian's Office to commit illegal acts. The two command structures were not connected, and the local Church had no "command value" over the Guardian's Office. To the contrary, the Guardian's Office had the ultimate power. Its activities were kept secret from the local Church.

G. The Breach of Trust Counts

The breach of trust convictions arose from intelligence operations carried out by the Guardian's Office Intelligence Bureau and directed at the O.P.P. and the Ministry of the Attorney General. In each instance, a plant was placed in the organization to acquire and make copies of confidential documents. The unauthorized disclosure of information, acquired by the plant through his or her employment, constituted the breach of trust. As indicated above, as the "Case Officer", Ms. Matz directed the plants to files of interest and facilitated the acquisition of confidential materials.

1. Breach of Trust at Ontario Provincial Police

The O.P.P. were of interest to the Guardian's Office as it was believed that they were investigating Scientology. Cynthia Bake became a plant at the O.P.P. after being approached by a case worker for the Guardian's Office Intelligence Bureau. Ms. Bake was a "public person" in the Church of Scientology of Toronto; she was not a staff member, but taking courses at the Toronto location. She obtained a clerk position with the O.P.P. Intelligence Branch in the general headquarters building. She swore an oath of office and secrecy, and worked in this capacity from May 1976 until November 1976.

As a plant, Ms. Bake reported to Jacqueline Matz. She testified at trial that she was pressured by Ms. Matz to find out what was in the O.P.P. files. She looked in the files, but could not find anything relating to Scientology. She took another piece of paper, which referred to the "Moonies", and gave it to Ms. Matz. Eventually, Ms. Bake did not wish to continue acting as a plant, and she resigned.

2. Breach of Trust at Ontario Ministry of the Attorney General

The breach of trust at the Ontario Ministry of the Attorney General involved a second plant. Janice Wheeler was a Scientologist who worked in the Toronto Organization and had been trained as a legal secretary. In 1974, she secured employment as a secretary with the Ministry of the Attorney General in the Director of Crown Attorneys branch. She provided several internal memoranda, sent between people in the Attorney General's office, to the Guardian's Office Intelligence Bureau. In total, Ms. Wheeler obtained approximately two to three file folders of documents from the Attorney General's office.

Janice Wheeler testified at trial that, as a result of her employment, she had access to a key that would open the door to the archives in the basement of the Attorney General's office. On three separate occasions, Scientologists gained access to the archives to search for files on Scientology. On one occasion, Ms. Evoy, the Deputy Guardian Intelligence Canada, removed a file from the archives and sent it to the Deputy Guardian Intelligence Office United States. The file was later discovered by the F.B.I. during a search of the Scientology premises in the United States.

Ms. Evoy described another incident where she met Janice Wheeler at the Attorney General's office. After all the staff had left, Ms. Wheeler took her inside and the two of them looked for files relating to the Church of Scientology. Ms. Evoy testified that they searched in the office of Donald MacKenzie, who was a lawyer responsible for some matters involving Scientology. Nothing was taken on this particular occasion.

Ms. Evoy described other occasions when she obtained Ministry files directly from Janice Wheeler. At one point, the two met in the bathroom at the office, and Ms. Wheeler gave Ms. Evoy a file relating to the Church of Scientology. Ms. Evoy copied the file and returned it to Ms. Wheeler so that it could be returned to the Ministry.

H. Pre-Trial Motions

The trial judge heard several pre-trial motions in this case. Some of the motions are relevant to the grounds of appeal now raised by the appellants. In particular, the motions concerning exclusion of evidence, adequacy of Crown disclosure, and jury selection, will be dealt with under the relevant ground.

I. Grounds of Appeal

Counsel for the appellants advanced numerous grounds of appeal, some of which were abandoned at the hearing. The principal remaining issues in the appeal are:

(i) whether the jury was properly constituted having regard to the exclusion of certain persons, such as non-citizens, from the array;

(ii) whether the identification doctrine of corporate liability as explained in
Canadian Dredge & Dock
applies to a non-profit corporation without share capital established for religious purposes; and

(iii) whether there was sufficient evidence to meet the test for corporate criminal liability, and, alternatively, whether the jury was adequately directed with respect to corporate criminal liability.

We called on Crown counsel to respond to these issues as well as to the sentence appeal.

Before discussing these main grounds of appeal, I turn to several grounds of appeal that can be disposed of with brief reasons.

II. ORDER OF CLOSING ADDRESSES

In her factum, the appellant Matz argues that the provisions of
s. 651
of the Criminal Codethat dictate the order of closing addresses violate her rights under
ss. 7
and 11
of the Charter.
In view of the decision of this court in
R. v. Rose1996 CanLII 573 (ON CA), (1996), 28 O.R. (3d) 602, leave to appeal to Supreme Court of Canada granted February 7, 1997 (subsequent to the hearing of this appeal), no oral submissions were made on this point. This ground of appeal fails.

III. SIMILAR FACT EVIDENCE

The appellants submit that the trial judge erred in permitting the Crown to introduce evidence of criminal acts, other than those in the indictment, allegedly committed by members of the Church of Scientology of Toronto. For example, he permitted the Crown to lead evidence that staff from the Guardian's Office had broken into government offices and other organizations. Evidence was led about the arrest of the two Scientology members, Coulson and Chornopesky, who had attempted to break into a law firm that was acting for former members of Scientology engaged in litigation with the Church. Evidence was also led of an attempt to obtain a file from the Ministry of the Attorney General by impersonation of one of the Ministry's counsel.

In our view, the trial judge did not err by admitting this "similar act evidence". He initially held that this evidence was admissible as tending to show that the acts charged were committed with the knowledge and authority of the Church of Scientology of Toronto.

The evidence was relevant to the issue of whether the Guardian's Office was acting on behalf of the corporate appellant. As this court noted in
R. v. McNamara et al. (No. 1)reflex, (1981), 56 C.C.C. (2d) 193 at 293, "Proof of the repetition of wrongful acts by the agents of a corporation may be sufficient to permit a jury to infer that the acts charged in the indictment were carried out with the knowledge and approval of those in charge of the corporation." Some of the evidence, especially that relating to the arrest of Coulson and Chornopesky, was also admissible as part of the narrative to explain steps taken by the Guardian's Office in relation to the charged acts.

By the end of the case, the trial judge had concluded that this evidence was not relevant to any issue in dispute and he instructed the jury accordingly. For example, the trial judge directed the jury as follows:

The Crown has led evidence of other criminal acts alleged to have been done by Scientologists. I have not referred to this evidence, because, if believed, it goes no further than to show that the criminal acts were committed with the authority of the Guardian Office in Toronto, and it was for that purpose that I permitted this similar fact evidence to be given.
But that evidence throws no light one way or the other on the point in issue as to whether the persons in the Guardian Office in Toronto were acting within the field of operation of Church of Scientology of Toronto that had been assigned to them.

Now, there is a very important point that I asked you to keep in mind respecting this evidence of other criminal acts. You must not rely on this evidence as evidence that Church of Scientology of Toronto had a propensity to condone or authorize criminal offences, and so was likely to have authorized the criminal acts with which it is here charged.
You should not rely on this evidence of other criminal acts in any way in determining the guilt or innocence of the individuals accused in any of the counts before you. It can only be used by you for the limited purpose I have explained, in determining the guilt or innocence of the corporate accused, the Church of Scientology of Toronto. And I repeat, in my view it does not advance the case there, because it only takes you to the Guardian Office, and then you are faced with the question:

Was the Guardian Office the directing mind of Church of Scientology of Toronto in a field of operation assigned to it? And was it not totally in fraud of that corporation? And was it, by design or result, for the benefit of that corporation?

[Emphasis added.]

Similar forceful directions to ignore this evidence on the issue of corporate criminal liability were repeated on several occasions.

The appellants were not unfairly prejudiced by the admission of this evidence. In fact, the trial judge's instruction to the jury to ignore this evidence was overly favourable to the appellants. This ground of appeal fails.

IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE

Mr. Ruby argues that the trial judge repeatedly and forcefully expressed his opinion on the central issues in the case, and usually in a manner favouring conviction. In our view, this is not a fair characterization of the charge to the jury when it is read as a whole. Mr. Ruby takes specific exception to thirteen comments by the trial judge in the course of the lengthy charge. However, when those comments are considered in context, it is apparent that they did not deprive the appellants of a fair trial. This was a lengthy case with a number of complex issues. It was entirely appropriate for the trial judge, where possible, to simplify the issues for the jury. Many of the comments about which the appellants complain concerned issues that were relatively non-controversial; other comments were part of a balanced review of the evidence; still others, when examined in context, actually favoured the defence position.

It is well established that a trial judge has considerable latitude to offer opinions in the charge as long as it is made clear to the jury that they are the sole judges of the facts and that they are free to reject the trial judge's opinion. See
R. v. A.W.E.,
1993 CanLII 65 (SCC), [1993] 3 S.C.R. 155. In this case, the trial judge repeatedly stressed to the jury that they were not bound by any of his expressions of opinion on matters of fact. On all but one occasion to which objection is taken, he specifically cautioned the jury that they were not bound by his opinion and that it was a matter for them to decide. The one instance in which the trial judge did not so caution the jury was a question of fact concerning the relationship between the Guardian's Office Canada and the Guardian's Office Toronto. That relationship was not seriously in dispute in the case. Moreover, in the one area of the case where the distinction was of some import, a plant in the R.C.M.P. in Ottawa, the jury acquitted the Church. This ground of appeal fails.

V. "REPLY" TO DEFENCE COUNSEL'S JURY ADDRESS

Mr. Ruby argues that the trial judge engaged in "contentious argument" during his charge by responding to certain remarks in defence counsel's jury address. In our view, the trial judge's comments were not inappropriate. Indeed, they were necessitated by certain statements by defence counsel that were legally incorrect or would have had the effect of diverting the jury from the real issues in the case. This ground of appeal fails.

VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES

Mr. Norris makes a number of submissions with respect to the trial judge's charge to the jury on the credibility of the principal Crown witnesses. Five of these witnesses, Bryan Levman, Emile Gilbert, Kathryn Smith, Dianne Fairfield and Marion Evoy, had formerly been members of Scientology and testified under the protection of immunity agreements.

In 1983, Mr. Levman, Mr. Gilbert and Ms. Smith were declared "suppressive persons", and expelled from Scientology. When they learned that the police were investigating the Church of Scientology of Toronto, they became concerned that they would be charged with criminal offences. In early 1984, they entered into immunity agreements with the authorities, which provided that they would not be prosecuted for any offences arising out of the investigation, on the condition that they would fully disclose their involvement with the Church and testify accordingly.

Dianne Fairfield was removed from her post as Assistant Guardian Social Coordination in Toronto in 1982 after admitting to representatives of the FLAG Bureau that she had been involved in criminal activities. In the fall of 1984, she entered into an immunity agreement with the authorities. Although the agreement was similar to that of the other witnesses, it included the additional condition that her information advance "in a material fashion the information obtained from previous witnesses."

In 1981, while Marion Evoy was the Deputy Guardian Canada, she was investigated by members of the Sea Organization and required to enter into a programme of confession and punishment because of her involvement in illegal acts. She was told to write out a list of her actions and to admit, in writing, that she was responsible for all of the actions she had directed. Ms. Evoy gradually withdrew from the Church and, in the fall of 1984, entered into an immunity agreement similar to that of Ms. Fairfield.

Mr. Norris argues that the trial judge did not give an adequate warning as to the danger of relying on the evidence of the Crown witnesses, as required by
R. v. Vetrovec,
1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. Mr. Norris also argues that the evidence relied on by the Crown to confirm the testimony of the Crown witnesses did not in fact do so. We only called upon Crown counsel to respond to the latter argument.

A. Adequacy of the
Vetrovec
Warning

In
Vetrovec,
Dickson J. held that where the trial judge decides that some caution should be given to the jury about the evidence of suspect witnesses, no particular rule, formula or direction must be followed. He held at p. 831 that what may be appropriate is a "clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness."

Mr. Norris submits that the language used by the trial judge in this case did not accomplish this task. He points out that the trial judge told the jury that they "may consider" that they required some confirmatory evidence before accepting the testimony of the five suspect witnesses.

In our view, examination of the charge as a whole reveals that the jury was adequately warned of the danger of accepting the witnesses' testimony. The trial judge reviewed the various factors that would cause the jury to be cautious, and pointed out the following:

(i) the five witnesses had all participated in the allegedly illegal acts, and despite their significant role, had not been prosecuted;

(ii) the witnesses had "bought" their immunity by agreeing to testify against the Church of Scientology of Toronto;

(iii) the witnesses had come forward not out of a sense of remorse, but because they believed that they would be charged themselves;

(iv) Mr. Levman had admitted to perjuring himself in civil proceedings concerning Mr. Coulson and Mr. Chornopesky; and

(v) Ms. Fairfield and Ms. Evoy were required to advance the Crown's case as a condition of obtaining immunity.

The trial judge warned the jury that they "should examine very carefully" the evidence of these witnesses before acting on it. It was in this context that the trial judge instructed the jury that they "may consider" that they required some confirmatory evidence.

In our view, it is insignificant that the trial judge told the jury that they "may consider" the need for confirmatory evidence rather than they "should" look for such evidence. In
Vetrovec
itself, Dickson J. stated at p. 832 that it would have been sufficient if the trial judge had said that "it would be wise" to look for supporting evidence. When coupled with the extensive reference to the reasons for approaching the testimony of the suspect witnesses with caution, the language used by the trial judge in this case sufficiently conveyed the need for care in adopting, without more, the evidence of these witnesses.

The trial judge concluded his charge concerning the suspect witnesses by suggesting that they were not "ordinary criminals" in that they had not acted for selfish reasons, but because they thought they were benefiting their religion. Mr. Norris submits that this final direction undermined the earlier caution. We do not agree. It was open to the trial judge to point out other factors that he considered to be relevant to the credibility of the witnesses. His concluding comments would not have led the jury to believe that his much lengthier comments detailing the frailties of the witnesses' credibility were to be ignored. There is no merit to this ground of appeal.

B. Confirmatory Evidence

Mr. Norris submits that the evidence on which the Crown relied to support the testimony of the suspect witnesses was not capable of confirming the evidence in the relevant sense. He argues that to qualify as confirmatory, the evidence must implicate the accused in the commission of the offence. It is his position that the evidence relied on by the Crown merely supported the witnesses' evidence as to their own roles in the offences. We called on the Crown to respond to this ground of appeal.

The trial judge left six items of evidence with the jury as potentially confirmatory. It is unnecessary to address all of them; reference to two will suffice. First, Ms. Fairfield and Ms. Evoy both described the contents of files that had been obtained from the Metropolitan Toronto Police. The trial judge pointed out that Sergeant Dimmock described the contents of a file kept by the police on the Church of Scientology, and that the file contained documents similar to those described by Fairfield and Evoy.

Second, Ms. Evoy testified that she had received a file from Janice Wheeler in the bathroom of the offices of the Ministry of the Attorney General. She described the file as relating to the application by the Church of Scientology under the
Marriage Act, R.S.O. 1970, c. 261 (now
R.S.O. 1990, c. M.3) for authority to solemnize marriages and regarding a complaint that a title used by the Church resembled that of a government department. Mr. Polika, who had been counsel for the Ministry of the Attorney General, testified that these two matters had been the subject of work within the Ministry at the time.

In my view, this evidence and the four other similar items were properly left to the jury as potentially confirming the testimony of the Crown witnesses. The evidence did not merely show the witnesses' own involvement in the offences. As Dickson J. made clear in
Vetrovec
at pp. 826-28, confirmatory evidence need not, itself, implicate the accused. Rather, it must confirm some material aspect of the suspect witness' testimony. Once such confirmation is supplied, the suspect witness' testimony may be made more credible as a whole.

In this case, the trial judge pointed out that the testimony of Sergeant Dimmock and Mr. Polika did not directly implicate the accused. It did, however, support material aspects of the Crown witnesses' testimony. It tended to confirm that the Guardian's Office had acquired confidential information from the target organizations, and that it had done so through the illegal plant operations. If Ms. Evoy, for example, was telling the truth about this aspect of her testimony, she may have been telling the truth about the purpose of the plants and who their actions were intended to benefit. In short, the evidence was capable of strengthening the belief that the Crown witnesses were telling the truth about the appellants' roles in the offences.

VII. DISCLOSURE

In their factum, the appellants make a broad attack on the adequacy of disclosure by the Crown and the trial judge's rulings refusing to require further disclosure of certain categories of documents. In particular, the appellants focus on the refusal of the trial judge to order disclosure of documents in the possession of the Ontario Ministry of Consumer and Commercial Relations. On the hearing of the appeal, the appellants abandoned most of these grounds of appeal. They limited their submissions respecting disclosure to one issue, namely, whether the Crown was required to provide to the defence an inventory of all of the material in the possession of the O.P.P. that had not been disclosed to the defence.

It is important to place this argument in its proper context. In his submissions to the trial judge,
Mr. Stewart, counsel for the Crown, set out a detailed history of the extensive disclosure that had, to date, been provided to the defence. This history included reference to the following:

(i) The defence had disclosure of the testimony of four former Scientologists, taken before the justice of the peace pursuant to
s. 509
of the Criminal Code, prior to the issuance of process. The transcript consisted of approximately 300 pages of evidence.

(ii) The defence received copies of all documents to be relied on by the Crown, and "will-say" statements of witnesses. This material consisted of several volumes, and was in excess of 2,600 pages.

(iii) The defence received copies of lengthy statements provided to the police by the five former Scientologists who ultimately testified at trial.

(iv) The defence received copies of lengthy statements provided to the police by other individuals who had previously been affiliated with the Church of Scientology of Toronto, and whom the Crown did not propose to call as witnesses.

(v) The defence had the benefit of a full and lengthy preliminary inquiry, during which they had extensive opportunity to question, by means of cross-examination, witnesses called by the Crown. The Crown called 40 witnesses to testify at the preliminary inquiry, many of whom were subject to lengthy and detailed cross-examination. The evidentiary portion of the hearing extended over approximately 31 weeks of court time.

(vi) The defence obtained almost wholesale access to the Metropolitan Toronto Police files relating to the Church of Scientology. This included access to an internal report prepared by the Metropolitan Toronto Police and the O.P.P. on the activities of the Church of Scientology of Toronto, which consisted of 1,477 pages, and which was subject to only minimal editing.

(vii) Toward the conclusion of the preliminary inquiry, on January 25, 1990, counsel for the Crown and defence negotiated and entered into a broad disclosure agreement, which set terms governing disclosure of a wide range of documentary materials that were of interest to the defence.

(viii) Following the preliminary inquiry, the defence continued to receive further disclosure. For example, defence counsel were provided with numerous documents relating to the execution of the search warrant on the premises of the Church of Scientology of Toronto in March 1983.

As noted above, toward the conclusion of the preliminary inquiry, counsel for the Crown and counsel for the defence had signed an extensive disclosure agreement. This agreement set out a number of matters that would be disclosed "in the interest of affording the defence the discovery they seek, and of bringing the preliminary inquiry to a close". Among other matters, the Crown agreed to disclose the following:

(i) a photocopy of the notes, in transcript form, made by Constable John Cunha while he was working in an undercover capacity for the O.P.P. at the Church of Scientology of Toronto from January 22, 1981 until May 26, 1982;

(ii) a photocopy of the notes, in transcript form where available, made by Constable Barbara Taylor while she was working in an undercover capacity for the O.P.P. at the Church of Scientology of Toronto from September 18, 1980 until March 3, 1983;

(iii) Scientology documents accumulated by Constables Cunha and Taylor while they were on undercover duties;

(iv) a photocopy of all of the notes or diary entries made by Detective Sergeant Ciampini, the lead investigator, throughout the investigation from 1972 to December 1, 1984;

(v) a photocopy of O.P.P. Criminal Investigation Branch file 29080 ("Project 20") memoranda relating to the investigation of the activities of the Church of Scientology of Toronto for the period commencing in January 1980 and culminating in the execution of the search warrant in March 1983;

(vi) documents acquired by the O.P.P. from the F.B.I. in the United States in early 1980;

(vii) background documents acquired by the O.P.P. in relation to the Project 20 investigation of the activities of the Church of Scientology of Toronto from January 1980 until December 1, 1984;

(ix) a photocopy of memoranda made by Inspector John Germain or Detective Sergeant Ciampini in relation to the purpose of trips to the United States, following the execution of the search warrant, in connection with the Project 20 investigation of the activities of the Church of Scientology of Toronto; and

(x) a photocopy of reports and documents contained in the O.P.P. security branch file for the period September 1972 through 1976 relating to the activities of the Church of Scientology of Toronto.

In addition to the items included in the disclosure agreement, Crown counsel had continuously responded to specific requests from defence counsel. After the trial judge ruled that Crown counsel was not required to provide an inventory of all of the material not yet disclosed, defence counsel made specific requests for certain items. Crown counsel reported to the trial judge that some of these items had already been disclosed, and that the others would be.

The trial judge also dealt with a specific concern relating to statements provided to the O.P.P. by certain individuals in the United States. The existence of these statements had been made known to the defence, but Crown counsel had refused to disclose the material on the basis that it was irrelevant. The trial judge reviewed the material and determined that certain items should be disclosed.

In our view, Crown counsel had met its disclosure obligations and was not required to provide the inventory sought by the defence. In
R. v. Chaplin,
1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, Sopinka J. dealt with the procedure where, as here, the Crown claims that it has discharged its disclosure obligations and Crown counsel denies that he or she is aware of the existence of any other relevant material. Sopinka J. held as follows at page 743-4:

In contrast to the above, in some cases, this being one, the existence of material which is alleged to be relevant is disputed by the Crown. Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies.
Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce as set out above in the passages which I have quoted from
R. v. Stinchcombe
[1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326] and
R. v. Egger
[1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451].

. . . .

Apart from its practical necessity in advancing the debate to which I refer above,
the requirement that the defence provide a basis for its demand for further production serves to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests. In cases involving wiretaps, such as this appeal, this is particularly important. Fishing expeditions and conjecture must be separated from legitimate requests for disclosure. [Emphasis added.]

In view of the extensive disclosure that had already been made by the Crown in this case, the further demand by the defence is properly characterized as "speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming". Despite the mass of material that was disclosed to the defence over the many years leading up to the trial and during the trial itself, defence counsel at the trial and on the appeal were unable to point to a single document that
might
exist that would be relevant to the case and that had not been disclosed. Put another way, assuming as we must that the defence had carefully examined all of the disclosed material and the evidence from the preliminary inquiry, defence counsel were nevertheless unable to point to anything that suggested that full disclosure of all relevant material had not been made. In our view, this is particularly telling since defence counsel were provided with copies of all of the notes of the lead investigator, Detective Sergeant Ciampini, all of the memoranda from the O.P.P. file relating to the investigation, and all of the reports and documents relating to the joint O.P.P.-Metropolitan Toronto Police investigation.

In his argument before us, Mr. Norris focused on submissions by Crown counsel at trial as an admission that other relevant and undisclosed material existed. The excerpt from the Crown's statement was as follows:

Mr. Ruby was saying, basically, "I need a list of everything the police have, and it's up to the Crown to go into the police files with the police and provide it. Otherwise, I don't know what's been withheld. If I have any dispute about it then this material has got to be lugged into court for you to review." And we take very strong exception to that approach under
Stinchcombe.
I certainly was not looking forward to having any direction from you to go back out to Mississauga to attempt to determine what, if anything --
and I am sure I will find materials, I don't want to mislead you in any way, because there are so many materials in this case, that if I didn't, it would be an astonishing fact. But I didn't want to go back out and have to inventory materials which the O.P.P. happened to have. [Emphasis added.]

In our view, reference to this statement by Crown counsel was not sufficient to discharge the burden on the defence as enunciated by Sopinka J. in
Chaplin. To the contrary, when the entirety of Crown counsel's submissions before the trial judge are reviewed, it is apparent that counsel believed that he had made disclosure of all relevant documents of which he was aware. As would be expected in a case of this size and complexity, Crown counsel could not state categorically that other relevant documents did not exist. However, as pointed out in
Chaplin, before anything further was required of Crown counsel, the defence had to establish a basis that could enable the trial judge to conclude that there was some other potentially relevant material in existence. Despite all of the tools at its disposal, including the massive disclosure already made, defence counsel was unable to do so.

Finally, in our view the recent decision of the Supreme Court of Canada in
R. v. Carosella,
a judgment of the Supreme Court of Canada, released February 6, 1997 does not require a different result. In that case, Sopinka J., for the majority, reaffirmed at para. 36 that the obligation on the Crown is to produce material that "may" affect the conduct of the defence. To repeat, Crown counsel in this case asserted that he had produced all such material. This is not a case like
Carosella
where the relevant document had not been disclosed (because it had been destroyed). The burden was on the appellants in this case to show, perChaplin, a basis from which the trial judge could conclude that other potentially relevant material existed. They failed to do so. There is no merit to this ground of appeal.

VIII. EXCLUSION OF SECONDARY EVIDENCE

This ground of appeal arises out of the execution of a search warrant by the police at the offices of the Church of Scientology of Toronto. The trial judge found that the manner in which the search warrant was executed violated the appellants' rights under
s. 8
of the Charter. As a remedy, the trial judge excluded all of the documents seized during the search. He also excluded certain "secondary evidence" with respect to charges of theft of confidential documents. In the result the Crown was unable to prove the seven counts of theft and in separate proceedings the appellants were acquitted on those charges. The appellants submit, however, that the trial judge erred in failing to exclude the secondary evidence on the breach of trust counts.

A. The Motion to Exclude the Primary Evidence

On March 3 and 4, 1983, over a period of about 17 hours, the O.P.P. executed a search warrant at the offices of the Church of Scientology of Toronto. Approximately two million documents were seized in purported execution of the warrant. The search warrant referred to several complex offences including tax fraud, fraud on the public, and conspiracy. The appellant was never charged with these offences.

Soon after the search and seizure, the Church launched an application to quash the warrant. It was heard by Mr. Justice Osler who upheld the validity of the warrant. An appeal by the Church to this court was dismissed:
ReChurch of Scientology et al. and the Queen (No. 6)
1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449. The court held that the fact that the police did not execute the warrant in accordance with its terms could not retroactively render the warrant invalid. The court, however, left open the effect of the alleged over-seizure. This set the stage for the hearing before the trial judge.

The trial judge heard extensive evidence concerning the manner in which the search was carried out. His most important finding was that the police made a wholesale seizure of documents without regard to the important limitation in paragraph 16 of the warrant. In that paragraph, the police were directed only to seize documents in the described categories or classes if they related to certain specified time periods and related "directly to" the described offences. The trial judge found that the police seized documents if they fell within the class of documents and the time period irrespective of whether the documents related directly to the described offences.

The police also seized a large number of "pre-clear" folders that contained confidential information about persons "audited" by the Church. The warrant authorized the seizure of pre-clear folders only in relation to members of the Guardian's Office staff. However, 978 pre-clear folders relating to 641 parishioners were seized. Only five of the seized folders related to Guardian's Office staff. Although many of the improperly seized pre-clear folders were returned to the appellant within months of the search, over 200 folders were not. However, pursuant to a court order, the pre-clear files had been ordered sealed pending determination of whether those files were privileged.

In extensive reasons, the trial judge held that the manner in which the search and seizure was executed was unlawful and constituted a violation of the appellants' right to protection against unreasonable search and seizure as guaranteed by
s. 8
of the Charter. He found that the police had not made a good faith attempt to stay within the boundaries of the warrant. The trial judge rejected the Crown's submission that the manner in which the search was conducted only affected the reasonableness of the seizure of the documents outside the terms of the warrant. He not only held that the seizure of so many documents not covered by the warrant was unreasonable, but that the manner in which the search was conducted tainted the entire seizure. His reasoning is summed up in this portion of his ruling:

Having decided that the manner of search was unlawful in the case at bar for failure to be governed by the concluding words of Paragraph 16 of the warrant, it would be inconsistent with the purpose of
s. 8
being that of preventing unjustified searches before they happen, to now hold that the search and seizure of some of the documents was not unreasonable because they would properly have been seized if the search warrant had been properly executed.

In my judgment, the seizure of the documents which the Crown seeks to use in evidence was unreasonable because of the unlawful manner in which the search and seizure was conducted. I do not intend to lay down a rule of general application. My decision is limited to the facts of this case, where the search was conducted by a number of officers, where the provision in the warrant that was not complied with was probably essential to the validity of the warrant, where the search covered a large number of articles, and where there was, by anyone's analysis, a very substantial overseizure. The unlawful manner of search might not have been significant in a simple case.

The trial judge then turned to the difficult question of whether the documents obtained as a result of the violation should be excluded. He reviewed the factors set out in
R. v. Collins,1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. He held that under the first set of factors, since the documents were real evidence, their admission would not affect the fairness of the trial. Under the second set of factors, the trial judge concluded that the seriousness of the violation strongly favoured exclusion of the evidence. The appellants place particular emphasis on the following part of the trial judge's reasons:

In considering the evidence respecting the search and seizure, I found that
the police did not act in good faith, because so many of them disregarded the concluding words of Paragraph 16 of the warrant, and there is no question that the evidence which the Crown seeks to admit could have been obtained in a properly conducted search. [Emphasis added.]

The trial judge briefly considered the third set of factors from
Collins, namely the effect of excluding the evidence on the integrity of the administration of justice. He pointed out that the evidence sought to be excluded would provide powerful circumstantial evidence "that the thefts had been committed", but that this would often be the case. The trial judge held that, on balance, the evidence should be excluded.

B. The Motion to Exclude the Secondary Evidence

Following the ruling concerning the exclusion of the seized documents, the appellants moved to exclude the "secondary evidence". The trial judge characterized secondary evidence as including all evidence of whatever nature discovered or generated after the seizure of the primary evidence. The appellants had sought exclusion of the testimony of the five witnesses who were discovered by, and gave statements to, the authorities after the search and seizure. These were the five ex-Scientologists, Bryan Levman, Marion Evoy, Kathryn Smith, Emile Gilbert and Dianne Fairfield. The appellants had also sought exclusion of any evidence discovered as a result of the interviews of these five witnesses.

The evidence adduced before the trial judge appears to establish that certain seized documents were immediately used by the police to attempt to find witnesses. In particular, the police had possession of a document titled "Suppressive Persons Declare". This document declared eight persons to be suppressive persons and expelled them from the Church. The police knew that these persons might well be disposed to providing information to the authorities. Three persons who later became Crown witnesses, Bryan Levman, Emile Gilbert and Kathryn Smith, are named in this document.

Contact was made with the persons who became Crown witnesses only after the lead investigator had travelled to the United States and made contact with David Mayo and his lawyer, Gary Bright. David Mayo was a former Scientologist based in the United States who had set up an organization in competition with Scientology and who was engaged in litigation with the Church of Scientology. Mayo and Bright acted on behalf of the police in contacting the former Scientologists and encouraging them to become Crown witnesses. Mayo conveyed to these potential witnesses that they might be charged. There was no evidence that Mayo or Bright had been shown any of the documents that were seized in the search of the Church of Scientology of Toronto.

The trial judge made a number of important factual findings concerning the relationship between the seizure and the obtaining of the testimony of the ex-Scientologists. Those findings may be summarized as follows:

(i) over a year elapsed between the date of the unlawful search and the interviews by the police of the Crown witnesses;

(ii) this delay is explained in part by the magnitude of the seizure;

(iii) the significance of the delay is reduced by the fact that the police tried unsuccessfully to interview persons named in the "Suppressive Persons Declare" within two months of the seizure;

(iv) two of the seized documents that were subject to solicitor client privilege were used by the police in the investigation and questioning of the Crown witnesses and must have assisted the police in obtaining the cooperation of Emile Gilbert and Kathryn Smith;

(v) the seized documents identified four entities that had been targeted by the Church of Scientology of Toronto and were previously unknown to the police, namely, the Ontario Medical Association, the Royal Canadian Mounted Police, the Metropolitan Toronto Police and a law firm acting for persons engaged in litigation with the Church;

(vi) all of the ex-Scientologists were concerned that they might be arrested as a result of evidence that would be discovered in the seized documents and this was an important factor in inducing them to co-operate with the authorities; the trial judge rejected the evidence of these witnesses to the extent that they attempted to minimize the importance of the seized documents in their decision to co-operate with the police;

(vii) it was "quite unrealistic" to suggest that these witnesses would have decided to come forward and confess their involvement in acts that occurred almost ten years earlier had it not been for their fear of incriminating evidence in the seized documents; and

(viii) the evidence given by these witnesses was influenced by the contents "real or apprehended" of the seized documents.

Based on these findings, the trial judge held that there was a causal connection, if not a temporal connection, between the violation of the
Charter
and the evidence obtained from the five ex-Scientologists. Accordingly, the evidence had been obtained in a manner that infringed the appellants' Charter
rights within the meaning of s. 24(2)
of the Charter.

In deciding whether or not this secondary evidence should be excluded, the trial judge again applied the test from
Collins. He noted that it was conceded that the first group of factors concerning the fairness of the trial was not relevant. As to the second group of factors concerning the seriousness of the
Charterbreach, the trial judge reaffirmed his earlier finding that the violation was a serious one.

The trial judge then turned to the final set of factors relating to the disrepute to the administration of justice that would arise from exclusion of the evidence. The trial judge distinguished between the theft counts and the breach of trust counts. He held that the gravamen of the offences was the use of Church members to infiltrate various organizations to obtain copies of documents containing information that might help the Church. The most reprehensible aspect of the conduct was the infiltration of the law enforcement agencies as represented by the breach of trust counts. The theft charges were relatively minor involving the temporary removal of pieces of paper of a value not exceeding $200.

The trial judge concluded that the exclusion of the secondary evidence in connection with the less serious offences of theft under $200 would not bring the administration of justice into disrepute. However, to exclude the secondary evidence on the more serious charges of breach of trust would bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances of the case.

C. Analysis

An appellate court should not interfere with the decision of a trial judge respecting the application of
s. 24(2)
of the Charter
unless the trial judge made an unreasonable finding of fact or a legal error in applying that provision. See R. v. Grant,1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223. In our view, there is no basis for interfering with the trial judge's conclusions concerning the admissibility of the secondary evidence. Accordingly, it is only necessary to deal briefly with the submissions of the appellants.

1. Causation

Before turning to those arguments, some brief comments are necessary with respect to the threshold issue of whether the secondary evidence was obtained in a manner that infringed the appellants'
Charter
rights. This case was tried before the decision of the Supreme Court of Canada in R. v. Goldhart,1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463. In
Goldhart,
reference is made to the decision of the trial judge in this case. Sopinka J. held that, to the extent that Southey J. held that a causal connection between the breach and the evidence was sufficient to trigger the provisions of
s. 24(2), this was an error. Instead, the court is required to examine the whole of the relationship between the breach and the evidence. Thus, the court must consider not only whether there is a causal connection, but the strength of the connection between the impugned evidence and the breach. The court must also consider whether there existed a temporal link. On the other hand, Sopinka J. noted that in this case the trial judge had found that illegally seized documents incriminated the witnesses and were a key factor in the decisions of the witnesses to come forward and testify for the Crown.

In our view, Sopinka J.'s reasons in
Goldhart
imply that it was open to the trial judge in this case to find that the strength of the causal connection between the Charter
breach and the obtaining of the secondary evidence was such that the evidence was procured in a manner that infringed the appellants' Charter
rights.

That being said, the fact that the connection between the secondary evidence and the violation was somewhat more remote than the obtaining of the primary evidence was a factor to be taken into account in applying the
Collins
factors. See R. v. Strachan,1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 per Dickson C.J.C. at p. 1006. I turn now to whether the impugned secondary evidence should be excluded.

2. Fairness of the Trial

With respect to the first set of
Collins
factors, we agree with the trial judge that the admission of this evidence would not affect the fairness of the trial. This secondary evidence did not have the quality of self-incrimination and did not emanate from the appellants. To paraphrase the dissenting reasons of Brooke J.A., adopted by Sopinka J. in
Goldhart
at p. 496, this testimony was the product of the minds of the witnesses themselves and could be known only if and when they chose to disclose it. It was not enough that the testimony might not have been obtained but for the illegal search. As held by Doherty J.A. in R. v. Belnavis1996 CanLII 4007 (ON CA), (1996), 107 C.C.C. (3d) 195 at 222-3 (Ont. C.A.) and Cory J. in
R. v. Stillman, a judgment of the Supreme Court of Canada, released March 20, 1997 at paras. 72-119, before admission of this type of evidence will affect the fairness of the trial, there must be some element of involvement or participation of the accused in the obtaining of the evidence. That element is absent in this case. The mere use by the authorities or documents, created by the accused before the violation, to obtain further evidence is not the kind of compelled participation that will render this after-acquired evidence "conscriptive evidence" so as to affect the fairness of the trial.

With respect to the second set of factors, in our view, the trial judge properly characterized the seriousness of the violation. Ms. Edwardh argues that the trial judge erred in considering the fact that the search was completed in a short period of time as a mitigating factor. This submission concerns the following aspect of the trial judge's reasons:

The loss of the documents in the illegal seizure caused substantial hardship to the Church. On the other hand, the police were acting in the execution of a valid search warrant. If the officers had tried to comply with para. 16 of the search warrant by satisfying themselves that they seized only documents relating directly to the offences alleged in the information, the search would have lasted must longer. Officers would have been present in the Church's premises for a greater period of time, which would have increased the disruption to the activities of the Church.

The trial judge's comments that had the police complied with paragraph 16 of the warrant they would have been on the premises for a greater period of time were not intended to diminish the seriousness of the violation. He was merely pointing out that this was a factor to be taken into account in considering the seriousness of the intrusion into the privacy interests of the Church. There is no question that had the police undertaken a detailed review of the documents at the premises, they would have been a constant and probably oppressive presence for many more days. That was a factor to be considered.

Where the alleged misconduct is of a complex nature in which funds are allegedly funnelled through a number of interrelated companies with a view to hiding their disposition, it seems to me that the number of documents that may afford evidence of such a violation may well be very great indeed. In such a case, an entire class of documents may in fact be necessary to trace the transactions.
Granted, many documents in a file may not, in the final analysis, be relevant to any tax violation. However, it may be impossible to preclude their relevance without a detailed examination of all the documents seized. [Emphasis added]

Hartt J.'s comments were made in the course of considering a submission similar to the one made in this case that the overseizure of documents rendered the search and seizure unreasonable. He had earlier made the following observation at p. 238:

A search and seizure of the kind authorized here would take months to complete if each document had to be examined individually. To interpret the legislation in the way urged could well lead to the serious disruption of private and business premises, could involve inordinate strain on public resources, and might well found a legitimate complaint that the manner in which a search is executed is oppressive. To insist that in all cases the determination of relevance be based upon the examination of the documents at the time of the search is similarly impractical. It seems to me that the search must be as detailed as is necessary to determine whether the documents may afford evidence of a violation and that the detail required will depend on how broad the standards of relevance properly are. [Emphasis added.]

This was a factor to be taken into account in considering the seriousness of the violation. The trial judge found, in effect, that the police made no attempt to comply with the provisions of paragraph 16 of the warrant. But this conduct had to be balanced against the consequences to the appellant of a more detailed review on the premises. The fact that the police were acting upon a valid search warrant was also a proper factor to take into account. See
R. v. Strachan, [1988] 25 C.R. 980;
R. v. Goncalves,
1993 CanLII 133 (SCC), [1993] 2 S.C.R. 3;
R. v. Plant,
1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at 300. Counsel for the respondent also point out that one of the most serious aspects of the violation, the unauthorized seizure of the pre-clear folders, is mitigated by the fact that these were immediately sealed in accordance with a court order.

4. The Administration of Justice

Finally, we agree with the trial judge's view concerning the third set of factors. In considering the effect of exclusion, the entire course of events had to be considered. This was not a case where admitting the evidence would have the effect of condoning unacceptable conduct by the police. The trial judge had already determined that the primary evidence should be excluded and that the secondary evidence should be excluded on the less serious theft charges. It was clearly open to him to find that the balance shifted in favour of admission in considering the serious breach of trust charges. The trial judge was required to balance the long-term consequences on the administration of justice of regularly admitting this kind of evidence, in the light of how it was obtained, against the consequences of excluding it. See
R. v. Greffe,
1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755 at 797.

In this case, the trial judge found a strong causal link between the
Charter
breach and the obtaining of the evidence of the Crown witnesses. However, it was also of some significance that the evidence obtained from the illegal seizure was not the only factor motivating the witnesses to come forward. The trial judge mentioned the "domino effect", which was also relevant on the second branch of the s. 24(2)
test. As the trial judge pointed out, the significance of the seized documents diminished once it became known that one or two of the other ex-Scientologists were cooperating with the police. The witnesses were also strongly motivated to cooperate with the authorities because of their own experience within Scientology. They had seen that when wrongdoing was detected, the Church would distance itself from the wrongdoers and, in fact, offer up the wrongdoers to the authorities and provide no assistance to them, even though they had been acting on behalf of the Church, or at least the Guardian's Office. These factors could all properly be taken into account to strengthen the conclusion of the trial judge with respect to the third set of Collins
factors that exclusion of the evidence on the breach of trust charges would tend to bring the administration of justice into disrepute.

The seriousness of the offences was also a proper factor to consider. In
Collins, the Supreme Court held that if the admission of the evidence would not affect the fairness of the trial and that without the evidence serious charges would be dismissed, the seriousness of the offences favours admission. We do not agree with counsel for the appellants when she submits that these were not serious offences. I will deal with this aspect of the case further when considering the sentence appeal. It is only necessary to point out here that these offences had the potential to seriously compromise the administration of justice in this province. As the trial judge pointed out, the most reprehensible aspect of the conduct was the attempt to impair the effectiveness of the targeted law enforcement agencies, including the various police forces and the Ministry of the Attorney General. The fact that the repeated efforts of the appellant to obtain confidential information were largely unsuccessful did not mitigate the serious nature of the breach of trust offences. The distinction the trial judge drew between the theft counts and the breach of trust counts was a reasonable one and we see no basis for interfering with his conclusion.

I now turn to the principal grounds of appeal.

IX. ELIGIBILITY FOR SERVICE ON A JURY

A. Introduction

In a pre-trial motion before the trial judge, the appellants challenged the constitutional validity of the jury selection scheme in the provincial
Juries Act, R.S.O. 1990, c. J.3. The focus of the challenge was the exclusion of non-citizens from the jury pool. The appellants also challenged the validity of excluding certain persons by reason of their occupation or the occupation of their spouse. The trial judge dismissed the motion and the jury was therefore selected in accordance with the existing legislative scheme. The appellants argue that the trial judge erred and, accordingly, that the jury was not properly constituted. We called on the Crown to respond to these submissions.

B. Selection of a Jury in Ontario

Although selection of a jury in a criminal case is a matter of criminal procedure, Parliament has relied upon the provincial legislation to assemble the panel from which the petit jury will be selected. Thus,
s. 626
of the Criminal Code
provides that a "person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province" is qualified to serve as a juror. The Code
also requires that the provinces meet certain standards in their jury selection schemes. For example, under
s. 626(2), "no person may be disqualified, exempted or excused from serving as a juror in criminal proceedings on the grounds of his or her sex." Pursuant to
s. 638(1)(d), the prosecutor or the accused may challenge a juror for cause on the basis that the juror is an "alien".[1]

For the purposes of this appeal, it is only necessary to provide a cursory outline of the process by which the jury is selected. The first step in the process is performed by the Director of Assessment for the Ministry of Revenue. Through the use of a computerized database, the Director selects the persons who will receive jury notices. Those persons in the database who are Canadian citizens, resident in the municipality and will be a minimum of 18 years of age when summoned, are identified and put into a separate computer file. The number of persons requested by the sheriff are randomly drawn from this separate database and mailed jury notices.

For the year 1992, the Sheriff for the Municipality of Metropolitan Toronto asked the Director of Assessment to send out 30,000 jury notices. The notice instructs the potential juror to answer a questionnaire designed to identify persons who would not be eligible for jury duty in accordance with the provincial legislation. One such question is whether the potential juror is a Canadian citizen. Approximately 22,000 individuals responded to the jury notice. From this group, the sheriff was able to prepare a list of 16,500 qualified persons. This becomes the jury roll from which jury panels are drawn for the year.

Panels of eligible jurors are selected from the jury roll to serve for two weeks. The members of the panel are selected at random. The petit jury will be selected from this panel in accordance with the procedure in Part XX of the
Criminal Code.Section 629
of the Criminal Code
permits the accused or the prosecutor to challenge the jury panel as a whole (challenge to the array of the panel) on the basis of partiality, fraud or wilful misconduct on the part of the sheriff or other official by whom the panel was returned. In this case, the appellants challenged the array of the panel pursuant to s. 629. They did not allege any personal state of mind or conduct on the part of the official who returned the panel, but argued that the system prescribed by the provincial statute was defective.

Where there is no challenge to the panel or that challenge is dismissed, the selection of the petit jury commences. Names are randomly selected from the panel. As those persons come forward they may be excused by the trial judge under s. 632 because they have an interest in the proceedings or directed to stand by for reasons of personal hardship by the trial judge under s. 633. The potential juror may then be challenged for cause in accordance with s. 638 or challenged peremptorily under s. 634. In this case, all of the potential jurors were challenged for cause under s. 638(1)(b) on the basis that they were not indifferent between the Queen and the accused. The challenge for cause mainly concerned pre-trial publicity about the Church of Scientology. At the end of this process, the petit jury of 12 jurors had been selected to try the case.

C. The Challenge at Trial to the Array

The challenge at trial to the panel was based on certain exclusions in the
Juries Act. First, the appellants argued that it is a violation of their
ss. 7,
11, and
15Charter rights to exclude non-citizens pursuant to
s. 2(b) of the Act. Second, they argued that
s. 3
of the Act is similarly unconstitutional in that it excludes medical practitioners, veterinary surgeons and coroners; and the spouses of judges, lawyers, and law enforcement personnel.
The relevant portions of
ss. 2
and 3
that produce these exclusions are as follows:

2. Subject to sections 3 and 4, every person who,

(a) resides in Ontario;

(b)
is a Canadian citizen;
and

(c) in the year preceding the year for which the jury is selected had attained the age of eighteen years or more,

is eligible and liable to serve as a juror on juries in the Ontario Court (General Division) and in all courts of civil or criminal jurisdiction in the county in which he or she resides. [Emphasis added]

3.-(1) The following persons are ineligible to serve as jurors:

1. Every member of the Privy Council of Canada or the Executive Council of Ontario.

2. Every member of the Senate, the House of Commons of Canada or the Assembly.

3. Every judge and every justice of the peace.

4. Every barrister and solicitor and every student-at-law.

5.
Every legally qualified medical practitioner and veterinary surgeon who is actively engaged in practice and every coroner.

6. Every person engaged in the enforcement of law including, without restriction the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff's officers, police officers, and officers of a court of justice.

7.
Any person of the opposite sex to whom a person mentioned in paragraph 3, 4 or 6 is married or with whom that person is living in a conjugal relationship outside marriage.
[Emphasis added]

Following the trial in this matter, s. 3(1)7 was repealed by the
Statute Law Amendment Act (Government Management and Services), 1994, S.O. 1994, c. 27, s. 48(1).

The core of the appellants' argument was that non-citizens represent a significant percentage of people, approximately 14% of the population of Metropolitan Toronto, and are unfairly excluded from the opportunity to serve on juries. The appellants called evidence as to the manner in which the panels are selected in Ontario. They also called expert evidence concerning the function of the jury and expert evidence concerning immigration.

The appellants argued that this exclusion is irrational since many, if not most, of this group can competently perform jury service. The appellants pointed to
s. 27
of the Charter,
which requires that the
Charter
be interpreted in a manner "consistent with the preservation and enhancement of the multicultural heritage of Canadians." They relied upon the evidence of their expert that the non-citizen community is "disenfranchised" because it is deprived of the opportunity for jury service. It was also his evidence that giving non-citizens the opportunity to serve on a jury would "increase the opportunity for minority opinions to be expressed in the fact-finding process."

The evidence adduced by the appellants shows that of the 1.7 million residents of Metropolitan Toronto over the age of 18, approximately 1.5 million are Canadian citizens. Almost one-half of the 1.7 million residents were not born in Canada and most, close to three-quarters of this group, have become Canadian citizens. Thus, on its face, the pool of potential citizens from which the panel would be selected is a highly diverse group in terms of ethnic and cultural background. I will make further reference to the statistical and other evidence as it becomes necessary in considering the arguments raised by the appellants.

In his reasons for judgment, the trial judge applied
Andrews v. Law Society of British Columbia,1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143,
concluding that non-citizens were a discrete minority and that exclusion of such a large group of persons from jury duty was a breach of the appellants' s. 11
right under the Charterto a representative jury. The trial judge held, however, that this breach constituted a reasonable limit under
s. 1
of the Charter. With respect to the exemptions in
s. 3
of the Juries Act
such as physicians and spouses of lawyers, the trial judge found that excluding these groups did not violate the guarantee to a representative jury because their exclusion would not materially reduce the representativeness of the jury panels.

D. The Positions of the Parties on Appeal

The appellants argue that exclusion of non-citizens under
s. 2
of theJuries Act
and exclusion of other persons by reason of their occupation or marital status under s. 3
of the Act, violate ss. 15,
7,
11(d) and
11(f) of the
Charter.
They argue that they have a right under
ss. 7
and 11
to a properly constituted jury. They argue that a properly constituted jury is one selected from a panel which has in turn been selected in a manner that does not violate any of the provisions of the Charter
and especially s. 15. Alternatively, they argue that they have a constitutional right to a jury selected from a representative pool and, as found by the trial judge, exclusion of large groups of potential jurors from the jury roll on the basis of irrelevant characteristics such as immigration status violates this constitutional right. They also argue that in the case of Jacqueline Matz who is a non-citizen, the exclusion of non-citizens violates her rights under
s. 15
of the Charter.

The respondent submits that the appellants are attempting to attack otherwise valid provincial legislation because it infringes the
s. 15
equality or other rights of potential jurors. The respondent argues that these appellants have no standing to argue the violation of s.15
rights of potential jurors. The respondent concedes that the appellants, or at least the individual appellant Matz, have a personal right under s. 11
of the Charter
to a representative jury roll. However, the respondent argues that the Juries Act
provisions guarantee the constitutionally required representativeness.

E. The Interveners

Two interveners were granted leave to make submissions on this issue. In support of the appeal is Mr. Laws, a black Canadian citizen who was convicted of conspiring to commit offences under the
Immigration Act, R.S.C. 1985, c.I-2. At his trial, he challenged the constitutionality of
s. 2
of the Juries Acton the basis that prohibiting non-citizens from jury duty effectively reduces the representation of his peers on the jury panel. His application was dismissed at trial:
R. v. Laws1994 CanLII 7392 (ON SC), (1994), 19 C.R.R. (2d) 269. Mr. Laws' appeal is pending in this court and the
Juries Act
issue forms one of the grounds of appeal. His intervener status in this case was granted on the ground that while the "Scientology evidence is general as to implications of citizenship, the Laws' evidence is specific to the black population of Metro Toronto": R. v. Church of Scientology of Toronto
1996 CanLII 679 (ON CA), (1996), 92 O.A.C. 313. The Attorney General of Canada, the respondent in the Laws appeal, intervened in this appeal to support the constitutionality of the
Juries Act.

Mr. Laws submits that any requirement of citizenship has a differential impact on black residents of Toronto in that a greater proportion of black residents would be excluded from jury duty than would the rest of the population. His position was supported with evidence including the statistics that 34.1 % of the black residents of Toronto are non-citizens, while only 14.4% of the non-black residents are non-citizens. The Attorney General of Canada argued that the
Juries Act
meets the standard of representativeness required by ss. 7,
11(d) and
11(f) of the
Charter.
Both interveners argue that the exclusion of non-citizens as it effects the
racial
representation on a jury was not raised in the Scientology case, and should be left for the Laws appeal.

F. Analysis

To analyze the issues raised in this appeal and the Crown's response, it is critically important to focus on the source and nature of the rights asserted. As I will explain below, it is my view that the appellants seek to rely upon the
s. 15Charter
rights of other persons and cannot do so. In the context of this case, the validity of the jury selection process must be measured by the rights guaranteed to accused persons under s. 11
of the Charter. However, because it is central to the appellants' argument, I will deal first with the
s. 15
claim. I will then consider the subordinate arguments based upon s. 7
of the Charter,
the
Criminal Code
and the common law. Finally, I will deal with s. 11
of the Charter.

1. Do the appellants as accused have standing to challenge the validity of the
Juries Act
exclusions based on R. v. Big M Drug Mart Ltd.,1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 or on any other basis?

2. Does the appellant Matz, as a non-citizen, have standing to challenge the validity of the
Juries Act
exclusion of non-citizens?

Unless the appellants had standing to challenge these provisions, the trial judge was bound to give effect to them, as are we. The jurisdiction of the trial judge and of this court to deal with the appellants' equality claim under
s. 15
and provide an appropriate remedy lies either in s. 24
of the Charteror
s. 52
of the Constitution Act, 1982.Section 24
gives a remedy only to a person whose rights have been infringed. See R. v. Belnavis1996 CanLII 4007 (ON CA), (1996), 107 C.C.C. (3d) 195 at 207 (Ont. C.A.).
Section 24
does not give these accused a remedy based on an alleged infringement of the equality rights of non-citizens who may have been excluded from the jury pool.

Section 52
is broader and gives a court the right to hold legislation to be of no force and effect where that legislation infringes the Chartereven if the accused's own rights or freedoms have not been infringed. Still, litigants do not have unlimited resort to
s. 52
and the courts have refused to deal with the validity of a statutory provision where the party seeking to challenge the legislation does not have standing. Most recently, see Ontario Home Builders' Association v. York Region Board of Education
1996 CanLII 164 (SCC), (1996), 137 D.L.R. (4th) 449 at 471-72 (S.C.C.)
per
Iacobucci J. Also see
Benner v. Canada (Secretary of State),
a judgment of the Supreme Court of Canada, released February 27, 1997, where Iacobucci J. held, at para. 78, that a party "cannot generally rely upon the violation of a third party's Charter
rights".

The appellants' principal claim to
s. 15
standing to raise the validity of the Juries Act
provisions is based on the doctrine from Big M Drug Mart.
In that case, Big M Drug Mart Ltd. was charged with violating the
Lord's Day Act,
R.S.C. 1970, c. L-13 by selling products from one of its retail stores on Sunday. It sought to defend the charge on the basis that the Act violated the guarantee to freedom of religion under s. 2(a) of the
Charter. The Crown argued that the accused had no standing to challenge the validity of the law since, as a corporation, it could have no religion. Dickson C.J.C. rejected that argument and explained at p. 313 the basis upon which the accused corporation could challenge the legislation:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with
s.2(a)
of the Charter
and by reason of s. 52
of the Constitution Act, 1982, it is of no force or effect.

....

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under
s. 2(a)
of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with
s. 2(a)
of the Charter
and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. [Emphasis added]

The doctrine in
Big M Drug Mart
gives an accused the right to defend a criminal charge by arguing that the
law under which the accused is charged
is unconstitutional. That is not the defence raised here. In my view, Big M Drug Mart
does not stand for the proposition that an accused may assert the personal rights of other actors in the proceedings, except where the possible infringement of those rights affects the accused's rights. In this case, the appellants must show that the manner in which the jury panel was selected infringed their rights as accused persons. Their rights as accused flow primarily from
s. 11(d) and (f) as persons "charged with an offence", and I will deal with those rights below.

The courts have given the
Big M Drug Mart
doctrine a generous interpretation, permitting accused to challenge the law under which they are charged provided that some accused's rights would be infringed by prosecution for that offence. In
R. v. Morgentaler,
1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, the accused physicians were entitled to challenge the constitutionality of former s. 251 (the abortion provision) of the
Criminal Code, on the basis that the section under which they were charged limited women's rights under
s. 7. However, as I read the various judgments in the Supreme Court, it was the possibility of criminal prosecution of women seeking an abortion under
s. 251
that was the foundation for the s. 7
argument. For example, Dickson C.J.C. (Lamer J. concurring) expressed the violation of s. 7
in the following terms at pp. 56-7:

Section 251 clearly interferes with a woman's bodily integrity in both a physical and emotional sense. Forcing a woman,
by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person. [Emphasis added.]

The reasons of Beetz J. (Estey J. concurring) and Wilson J. are to a similar effect, at pp. 81

and 161 respectively.

In my view, the result in
Morgentaler
does not support the appellants' claim to standing, nor does R. v. Wholesale Travel Group Inc.,
1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154 or
R. v. M. (C.)
1995 CanLII 8924 (ON CA), (1995), 98 C.C.C. (3d) 481 (Ont. C.A.). The common thread in all these cases is that because of their status as accused, the accused persons have been accorded standing to challenge the provisions under which they were charged, provided that the rights of some potential accused would be infringed. We were referred to no case that gave an accused standing to assert
s. 15
rights of some other persons in the justice system.[2]

Further, I see no policy basis to extend
Big M Drug Mart
to permit the appellants to assert the
s. 15
rights of potential jurors. The Supreme Court of Canada has repeatedly affirmed the personal nature of s. 15
rights. In Andrews v. Law Society of British Columbia
at p. 163, McIntyre J. pointed out that
s. 15(1)
was not a general guarantee of equality; "it does not provide for equality between individuals or groups within society in a general or abstract sense". In R. v. Swain,
1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933 at p. 992, Lamer C.J.C. also noted the personal nature of
s. 15
rights. He pointed out that the inquiry will "focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant
and others based on personal characteristics". Based on this interpretation of
s. 15, I can see no basis to grant standing to the appellants to argue the equality rights of a highly diverse group of which they cannot personally be members, namely non-citizen potential jurors. The
Big M Drug Mart
doctrine does not afford the appellants standing to argue that the equality rights of potential jurors have been infringed.

Similar principles apply where an accused seeks to challenge the procedural provisions under which he or she is tried. Thus, in
R. v. Bain,
1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, the accused was able to challenge the validity of the stand aside provisions (former s. 634) of the
Criminal Code, even though there was no evidence that the process had been abused in his case. In fact, the trial judge made his ruling before any jurors had been selected. The accused was, however, asserting a personal right under
s. 11(d) of the
Charterto be tried by an impartial tribunal. He was claiming that by reason of the stand aside provisions, the selection process operated unfairly towards him and in favour of the Crown. This is confirmed by the judgment of Cory J., for the majority, at p. 103:

The section is so heavily weighed in favour of the Crown that viewed objectively it must give that legal fictional paragon, the reasonable person, fully apprised of the manner in which a jury may be selected, an apprehension of bias. This must be so since the jury,
as a result of the selection process, would appear to be favourable to the Crown. [Emphasis added.]

The rights asserted by the appellants in this case under
s. 15
are entirely different. It is a claim, not that the jury roll by reason of exclusion of non-citizens deprived them of a trial by an impartial tribunal, but that non-citizens were deprived of their
rights to participate on a jury. As in Bain, the appellants' rights are located in
s. 11, not
s. 15.

The corporate appellant concedes that it has no direct claim to rights under
s. 15
of the Charter. The appellant Matz, however, attempts to assert a direct
s. 15
violation based on her own status as a non-citizen. To the extent that this is merely a recasting of the argument based on Big M Drug Mart,
it must fail. Matz has no right as an accused to assert a claim for the equality rights of potential jurors.

In the event I am wrong about Matz's lack of standing to argue
s. 15, in my view, Matz's equality rights as a non-citizen have not been infringed. As I understand it, Matz also asserts a
s. 15
violation on the theory that, as a member of a discrete and insular minority, the disqualification of persons like her from jury service violates her own right to be treated without discrimination as mandated by s. 15. I accept, of course, that the Supreme Court in
Andrews
has held that non-citizens who are permanent residents of Canada fall into an analogous category to those enumerated in s. 15. That, however, is not the end of the inquiry.
Section 15(1)
provides as follows:

Every individual is
equal before and under the law and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Emphasis added.]

In
Eaton v. Brant County Board of Education1997 CanLII 366 (SCC), (1996), 142 D.L.R. (4th) 385, Sopinka J., speaking for the court on this issue, pointed out that while there was a division within the court in
Miron v. Trudel,
1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418 and
Egan v. Canada,
1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513 as to some of the principles relating to the application of
s. 15
of the Charter,
there was common ground on some points. In particular, he noted at para. 62 that there is general agreement that "before a violation of s. 15
can be found, the claimant
must establish that the impugned provision creates a distinction on a prohibited or analogous ground which withholds an advantage or benefit from, or imposes a disadvantage or burden on, the claimant." [Emphasis added.] The appellant Matz, the claimant, cannot meet that threshold requirement.

Matz was in no way subjected to disadvantageous treatment by reason of any distinction on the analogous ground of her immigration status. She received equal benefit and equal protection of the law without discrimination due to her immigration status. The impugned provisions of the
Juries Act
did not withhold any advantage or benefit from, nor impose a disadvantage or burden on her.[3] She was not, and could not, be summoned as a potential juror in her own case and no
s. 15
rights of hers were violated by the provisions.

Matz makes a related claim that by reason of the
Juries Act
exclusions she was denied the benefit of the views and experiences of other non-citizens. This, however, is a claim based on lack of representativeness of the array. It is a claim she can make as an accused and her right, if any, to this degree of representativeness is located not in s. 15
but in s. 11
as a person "charged with an offence". I deal with that claim below.

The appellants also seek to rely on
s. 7
of the Charterwhich guarantees everyone the right to life, liberty and the security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Even though, according to
Irwin Toy Ltd. v. Quebec (Attorney General),
1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, the appellant corporation cannot invoke
s. 7, the appellant Matz as a person whose liberty interests are at stake clearly can rely on the fundamental justice guarantee in
s. 7. However, the fundamental justice guarantee in
s. 7
adds nothing to her claim. In the context of this case, s. 7
does not offer greater protection than the specific guarantee under s. 11(d) and (f). See
R. v. Généreux,1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259 at 310
per
Lamer C.J.C. The potential impairment of the appellant Matz's liberty interest arises from her status as an accused, not by reason of her immigration status. Her right to fundamental justice must be seen within that context.

The claim based on
s. 7
of the Charter
is an attempt, indirectly, to acquire standing to argue the equality rights of potential jurors. The appellant Matz attempts to avoid the standing requirements in s. 15
by arguing that an accused has a right under s. 7
as a matter of fundamental justice to a properly constituted jury. She defines a properly constituted jury as one selected in a manner that does not violate any of the provisions of the Charter, in particular
s. 15. The appellant was entitled to a properly constituted jury, but as the
Juries Actand the
Criminal Code
stood at the time, this panel was selected according to law and the jury was properly constituted. If the appellant had no standing to challenge these provisions on the basis of s. 15, the trial court and this court were bound to give them effect.

Matz also seeks to rely upon this court's decision in
Philippines (Republic) v. Pacificador1993 CanLII 3381 (ON CA), (1993), 16 C.R.R. (2d) 299. In that case, the appellant, who was subject to proceedings under the
Extradition Act,R.S.C. 1985, c. E-21, argued that his rights under
s. 7
of the Charter
were violated. Had he been subject to surrender under the Fugitive Offenders Act, R.S.C. 1985, c. F-32, the demanding state would have had to meet a higher standard of proof. The appellant could not gain direct access to
s. 15
of the Charterbecause there was no basis for arguing that the different tests in the two Acts were discriminatory within the meaning of
s. 15
as explained in cases such as Andrews.

The appellant in
Pacificador
argued, however, that it is a principle of fundamental justice that all persons must be treated equally before the law, except to the extent that distinctions in their treatment can be justified by some reasonable or rational legislative policy. Doherty J.A. accepted that the equality rights created by
s. 15
are principles of fundamental justice, but held at p. 13 that this did not "alter the required analysis or yield a different concept of equality." Since the different tests for committal under the two Acts do not result in discriminatory treatment within the meaning of s. 15, "the appellant's argument that
his
equality rights as enshrined in s. 7
of the Charter
are infringed must fail." [Emphasis added.]

Pacificador
is of no assistance to the appellant in this case. Even if s. 7
of the Charter
incorporates the equality rights under s. 15, it only incorporates the equality rights of the person whose liberty is at stake. It is that person who is entitled to proceedings in accordance with the principles of fundamental justice. The liberty of non-citizens who may be affected by the alleged discriminatory nature of the
Juries Act
was not at stake in this prosecution.

4. The Right under the Common Law and the
Criminal Code
to a Properly Constituted Jury

The appellants argue that at common law and under the
Criminal Code,
they are entitled to trial by a properly constituted jury. I doubt that reference to the common law adds anything to this argument since the detailed provisions of the Criminal Code
and the provisions of the Juries Acthave probably largely supplanted the common law respecting jury selection. What has been said above in relation to
s. 7
of the Charter
applies with equal force to the argument based upon the common law and the Criminal Code,
and only a few additional comments are necessary.

The appellants place particular reliance upon the decision of this court in
R. v. Rowbotham1988 CanLII 147 (ON CA), (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In that case, the trial judge did not comply with the statutory requirements for selecting the jury. After the jury panel had been exhausted, rather than proceed under former
s. 571
of the Criminal Code
by ordering a tales, the trial judge purported to increase the size of the original panel. In the result, those potential jurors who had been stood aside by the prosecutor under former
s. 563
were never recalled. The accused's appeal from conviction was allowed and a new trial ordered. The following passage at p. 37 summarizes the reasons of the court and is relied upon by the appellants here:

[The trial judge's] duty is to follow the statute. He must not enter upon a course of action that prevents resorting to the "stand-asides" when that result is called for under the
Code.
He must follow the (constitutionally valid) statute.

....

In the result, because
the process actually adopted by the trial judge was not authorized by law, and deprived the appellants of a statutory right conferred on them by
s. 571
of the Criminal Code, the appellants were deprived of a trial by a jury lawfully constituted. This error in itself requires a new trial. [Emphasis added.]

The appellants take a broad view of the emphasized portions and argue that the process followed in this case to summon the jury panel was not authorized by law since that process discriminated against non-citizens and others. Put shortly, they argue that although the trial judge was bound to follow a constitutionally valid statute, equally he was bound not to follow a constitutionally infirm statute.

While this proposition is probably true in the abstract, it does not apply to this case. The impugned legislation was validly enacted and until set aside by a competent court, the sheriff and the other officials charged with the responsibility of summoning the jury panel were bound to follow that legislative scheme. Where, as here, the procedure mandated by the legislation is followed, the jury has been lawfully constituted. The appellants' lack of standing to make the equality arguments prevents them from arguing that the statutes are constitutionally infirm on that basis.

The appellants concede that they are not entitled to a petit jury that is "representative". They argue, however, that the selection process cannot be structured so as to ensure that the jury will not be representative. The appellants do not distinguish, in terms of representativeness, between the selection of the jury roll, which consists of a pool of some 22,000 persons who may be summoned for jury duty during the year, and the selection of the jury panel of one to two hundred people summoned for jury duty that week and from which the appellants' petit jury was selected. Since the exclusion of non-citizens and others operates at the level of the jury roll, I will assume that the appellants claim a right to a representative roll.

The appellants argue that the deliberate exclusion of certain groups, especially non-citizens, results in an unrepresentative roll. Thus, selection of the panel in the manner mandated by the
Juries Act
ensures that the petit jury will not be representative. The appellants submit that the right to a representative pool is implied by the guarantees in

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

....

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment ....

The Crown submits that the corporate appellant has no standing to rely upon
s. 11
of the Charter. It is argued that the right asserted depends upon
s. 11(f) and a corporation has no right to trial by jury. See
P.P.G. Industries (Canada) v. Canada (Attorney General)
1983 CanLII 287 (BC CA), (1983), 3 C.C.C. (3d) 97 (B.C. C.A.). It is unnecessary to resolve this difficult question since the appellant Matz is charged with offences carrying a maximum punishment of five years, and thus clearly had the right to a jury under
s. 11(f). Moreover, I am not convinced that the right to a representative jury roll is wholly subsumed within
s. 11(f). The right to a representative jury roll is also a means of ensuring impartiality. Exclusion of identifiable groups from the jury panel on the basis, for example, of race or religion casts doubt on the integrity of the process and risks the creation of the appearance of bias, thereby possibly violating an accused's right under
s. 11(d) to trial by an independent and impartial tribunal.

No question of standing otherwise arises. In other words, the right asserted by the appellants to a representative jury roll is a right guaranteed to them by
s. 11
as accused persons. The fact that the appellant Matz happens to be a non-citizen is beside the point. She could raise the question of representativeness even if she were a citizen. Equally, her right to a representative jury roll is not a right to a roll that shares any distinctive characteristics that she may possess. It is the quality of representativeness in the jury roll that is at stake, not the particular make-up of any of the panels randomly selected from that roll.

In
R. v. Sherratt,
1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, L'Heureux-Dubé J. discussed the important role of the jury in criminal litigation. She pointed out that by reason of its collective decision-making, the jury is an excellent fact finder. In a passage of particular interest in this case at p. 523, she held that the jury "due to its representative character" acts as the conscience of the community. The jury can act "as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole."

The justification for the representative nature of the jury is not simply to assure that the case is tried by an impartial tribunal. The representative character of the jury also furthers important societal or community interests by instilling confidence in the criminal justice system and acting as a check against oppression. The accused and the community have an interest in maintaining the representative character of the jury system. In
Sherratt, L'Heureux-Dubé J. made several other comments concerning the nature of the representative character of the jury. Thus, she stated at p. 524 that the modern jury was not meant to be a tool of either the Crown or the defence but rather "was envisioned as a representative cross-section of society, honestly and fairly chosen".

In
Sherratt, L'Heureux-Dubé J. found that the selection of a jury in a criminal case engages two related
Charterrights. First, the guarantee in
s. 11(f) to the benefit of trial by jury implies that the jury will be impartial and representative. Second,
s. 11(d) of the
Charterexplicitly guarantees the accused the right to be tried by an impartial tribunal. The selection of the jury panel in accordance with provincial legislation, incorporated through
s. 626
of the Criminal Code,
is the primary vehicle for ensuring representativeness. The in-court procedure set out in Part XX of the Criminal Code
is the mechanism for ensuring that the petit jury is impartial. This case involves only the question of representativeness. The appellants do not attack the impartiality of this petit jury, which was selected following a challenge for cause of each juror in accordance with the Criminal Code.

The content of the right to a representative jury as that right may be guaranteed by
s. 11
is a matter of first impression in this court. The respondent submits, however, that the issue has been determined by the Supreme Court in Sherratt. The respondent relies upon the following passages from the reasons of L'Heureux-Dubé J. at pp. 524-26:

Increasingly, however, many countries have since repealed property, sex and race qualifications for jurors and have legislated other expansions in the number of
citizens eligible for jury duty
... These later developments only serve to underscore the previously articulated rationales for the existence of the jury.

....

The perceived importance of the jury, and the
Charter
right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place. Provincial legislation guarantees representativeness, at least in the initial array.
The random selection process, coupled with the sources from which the selection is made, ensures the representativeness of Canadian criminal juries: see the provincial Jury Acts. Thus, little if any objection can be made regarding this crucial characteristic of juries. Schulman and Meyers, [ "Jury Selection", in Studies on the Jury, Law Reform Commission of Canada (1979)] make this clear at p.408 of their discussion:

Jury qualification requirements in Canadian provinces are considerably different than those in the United States or England. The American Bar Association Standards for trial by jury, as recommended by the Advisory Committee on the Criminal Trial, say that - "The names of those persons who may be called for jury service should be selected at random from sources which will furnish a representative cross-section of the community."
Canadian laws by and large have long met the standard. [Underlining in original. Bold added.]

The respondent points out that L'Heureux-Dubé J. referred in these passages to "citizens" eligible for jury duty and stated that the random selection process coupled with the sources from which the selection is made as provided in the provincial Jury Acts "ensures" the representativeness of Canadian criminal juries. The appellants submit, however, that the approval of the selection process is qualified in that L'Heureux-Dubé J. also said that "little, if any objection" can be taken to the present selection process. They also point out that in the Schulman and Meyers article referred to by L'Heureux-Dubé J., the authors later suggest that consideration be given to permitting landed immigrants to serve on juries service if they would otherwise qualify for jury service.

Although there is considerable merit in the Crown's position, it is unnecessary to decide whether this aspect of the representativeness question has been finally determined by the Supreme Court in
Sherratt
since, in any event, the appellants have failed to show that their rights under
s. 11
have been violated.

The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. There are a number of practical barriers inherent in the selection process that make complete representativeness impossible. The roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society.

Further, the critical characteristic of impartiality in the petit jury is ensured, in part, by the fact that the roll and the panel are produced through a random selection process. To require the sheriff to assemble a fully representative roll or panel would run counter to the random selection process. The sheriff would need to add potential jurors to the roll or the panel based upon perceived characteristics required for representativeness. The selection process would become much more intrusive since the sheriff in order to carry out the task of selecting a representative roll would require information from potential jurors as to their race, religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a jury panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to a representative panel or roll.

What is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury's verdict, and contributes to the community's support for the criminal justice system. To use the words of Madam Justice L'Heureux-Dubé in
Sherratt
at p. 524, what is required is a "representative cross-section of society, honestly and fairly chosen." In my view, there is no characteristic that persons bring to the fact-finding process of the jury based solely on their immigration status. Canadian citizens are of all races, nationalities, ethnic origin, colour, religion, sex, age and ability. Immigration status is simply not a relevant characteristic when regard is had to the rationale underlying the right to a representative pool. A jury pool selected from Canadian citizens represents the larger community for the purposes of trial by jury.

It may be, however, that exclusion of certain segments of society from jury service would infringe the requirement of a representative cross-section. This issue has been considered in the United States in a number of different contexts. In
Taylor v. Louisiana, 95 S.Ct. 692 (1975), Mr. Justice White, delivering the judgment of the court, held that it was fundamental to the jury trial guarantee in the Sixth Amendment to the United States Constitution that the jury be selected from a fair cross-section of society. He saw the jury as a "prophylactic vehicle" to "guard against the exercise of arbitrary power--to make available the common sense judgment of the community" (at p. 698). This prophylactic vehicle is not provided if the jury pool is "made up of only special segments of the populace or if large, distinctive groups are excluded from the pool."

The exact definition of "distinctive group" has proved elusive. As one court noted, the Supreme Court has not "burdened the term 'distinctive group' with a precise definition":
Silagy v. Peters, 905 F.2d 986 at 1010 (7th Cir. 1990). The Crown urged us to adopt the formulation used by Mr. Justice Rehnquist in
Lockhart v. McCree, 106 S.Ct. 1758 (1986). Mr. Justice Rehnquist summarized the previous decisions of the court that had found a violation of the fair-cross-section requirement as follows at p. 1766:

Because these groups were excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community. In addition, the exclusion from jury service of large groups of individuals not on the basis of their inability to serve as jurors,
but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably gave rise to an "appearance of unfairness." Finally, such exclusion improperly deprived members of these often historically disadvantaged groups of their rights as citizens to serve on juries in criminal cases. [Emphasis added.]

I hesitate to attempt to articulate an all-inclusive test of distinctiveness such as "some immutable characteristic". In my view, it is preferable to deal with each case having regard to the purposes of the representativeness requirement as set out by L'Heureux-Dubé J. in
Sherratt. The essential quality that the representativeness requirement brings to the jury function is the possibility of different perspectives from a diverse group of persons. The representativeness requirement seeks to avoid the risk that persons with these different perspectives, and who are otherwise available, will be systematically excluded from the jury roll.

Exclusion of non-citizens does not infringe the representativeness or fair cross-section requirement in this sense. There was no evidence that non-citizens as a group share any common thread or basic similarity in attitude, ideas or experience that would not be brought to the jury process by citizens. The expert evidence led by the appellants was somewhat misleading in this respect. From my review of the evidence, it seems that the expert tended to use non-citizenship opinion as a proxy for minority opinion. The evidence, however, simply does not bear out the inference that exclusion of non-citizens disproportionately excludes minorities from the jury. As pointed out above, almost one-half of the 1.7 million residents of Metropolitan Toronto over the age of 18 were not born in Canada, but most, close to three-quarters, have become Canadian citizens.

In the context of jury representativeness, citizenship, like residency in the province, is not an improper basis for defining the parameters of the jury roll. As La Forest J. wrote in
Andrews v. Law Society of British Columbia
at p. 196, "[C]itizenship is a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity." All free and democratic societies have established a unique status like citizenship to which attach certain rights, privileges and obligations closely related to the concept of self-government. It will be recalled that in speaking of the importance of the jury function, L'Heureux-Dubé J. held in
Sherratt
that the jury can act as the conscience of the community and as the final bulwark against oppressive laws or their enforcement. I see no reason why this important aspect of self-government should not be reserved for citizens, where, as here, exclusion of non-citizens does not affect the representativeness of the jury roll.

The intervener Laws argues that immigration status is a proxy for other potentially relevant characteristics, especially colour. See Ivan Head, "The Stranger in our Midst: A Sketch of the Legal Status of the Alien in Canada",
Can. Y.B. Int'l L.
(1964), at 107. Thus, he argues that exclusion of non-citizens undermines the representativeness of the jury especially as regards colour.

The evidence presented here, however, fails to demonstrate the point. As noted above, citizens, at least in Metropolitan Toronto, are of all races, colours and national origin. According to the evidence adduced in the
Laws
case itself, including non-citizens in the panel would increase the likelihood of selecting a black person for the panel by only .9%. In my view, this cannot affect the representative nature of the array. The deliberate exclusion of distinctive groups based on characteristics such as race, sex, colour, religion or national origin might well infringe the requirement of a jury selected from a fair cross-section of the community. Exclusion of certain persons based upon their immigration status is simply not of that quality.

In my opinion, Mr. Laws is making an equality argument. He argues that the exclusion of non-citizens has the effect of excluding a "disproportionate number of his peers" from the panel.[4] I make no comment on whether or not this is a valid argument in the
Laws
appeal. It simply does not arise in this case.

The appellants argue, as held by the trial judge, that non-citizens must be considered distinctive for the purpose of the jury guarantee in
s. 11(f) because the Supreme Court of Canada

held in
Andrews v. Law Society of British Columbia
that non-citizens fall into an analogous category for the purposes of
s. 15
of the Charter.

In my view, the trial judge erred on this point.
Sections 11
and 15
have different purposes and guarantee different rights to different persons. In Andrews, Wilson J. explained at p. 152 the rationale for including non-citizens in
s. 15: "Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having
their
interests overlooked and their
rights to equal concern and respect violated." The focus of s. 15
is on the claimant, the person who is vulnerable to discrimination from the majority. For the reasons that Wilson J. and the other members of the court gave in Andrews,
non-citizens require the protection of s. 15. The rights protected by
s. 11
are entirely different and require an entirely different analysis. They focus on the need to protect the accused from abuse by the state. In the context of s. 11, the right to a jury trial carries a right to a petit jury selected from a jury roll that is reasonably representative of the community having been selected from a fair cross-section of the community. Exclusion of persons based solely on their immigration status does not detract from the protection afforded an accused by
s. 11
of the Charter.

As the appellants have failed to demonstrate a violation of
s. 11(d) or (f), it is unnecessary to consider whether the exclusion of non-citizens would constitute a reasonable limit under
s. 1.

6. Exclusions Based on Occupation and Marital Status

The other exclusions challenged by the appellants may be dealt with briefly. The appellants have failed to demonstrate that the exclusion of physicians, veterinarians and coroners produces an unrepresentative jury array. These exclusions are three of several exclusions in
s. 3(1)
of the Juries Act,
as it read at the time of the trial, based on occupation.

Physicians, veterinarians and coroners cannot fairly be said to represent a distinctive group. The opinion of the defence expert was that their exclusion results in the exclusion from the array of some of the better educated persons in the society. Even if level of education were a distinctive characteristic, and in my view it is not, the exclusion of a few thousand persons from a pool of over one million persons is trivial and in no way undermines the legitimacy of the jury array. As White J. said in
Duren v. Missouri, 99 S.Ct. 664 at 671 (1979) , [quoting in part from
Taylor v. Louisiana, 95 S.Ct. 692 (1975)], "[I]t is unlikely that reasonable exemptions, such as those based on special hardship, incapacity or community needs 'would pose substantial threats that the remaining pool of jurors would not be representative of a community'."

The appellants also complain of the exclusion of the spouses of judges, lawyers and persons engaged in the enforcement of law. The appellants argue that exclusion of this group is discrimination on the basis of marital status. To the extent that the appellants seek to invoke the rights of the persons allegedly discriminated against, the earlier comments on standing apply. Moreover, this provision has now been repealed by the Legislature.

The appellants also argue that the exclusion of spouses had the effect of excluding a distinctive group, namely women. They argue that since the majority of persons in the named occupations are men, exclusion of their spouses tends to disproportionately exclude women. However, as with the argument made by Mr. Laws regarding blacks, the appellants have failed to show that exclusion of certain spouses impaired the representative nature of the jury array
vis a vis
gender. The number of women who would actually have been excluded under s. 3(1)7 was never established in the evidence, but could represent only a very small number of women who would otherwise be eligible to be selected in the array, probably something less than 15,000 out of a population of over one-half million. It cannot be said that this exclusion unfairly depleted the pool of women so as to affect the fair cross-section requirement.

The jury panel was properly constituted in accordance with valid provincial and federal legislation. The appellants have not shown that any of their rights as guaranteed by the
Charter
or under the Criminal Code
or at common law were violated by the manner in which the array was assembled. This ground of appeal fails.

X. CORPORATE CRIMINAL LIABILITY

A. Introduction

The appellant Church of Scientology of Toronto makes several submissions respecting corporate criminal liability. First, it argues that the identification doctrine as set out in
Canadian Dredge & Dock Co., Ltd. v. The Queen,
1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662does not apply to a non-profit corporation established for religious purposes. Second, it argues that even if the identification doctrine applies, that doctrine has been further explained by the Supreme Court of Canada, subsequent to the trial in this case, in
The Rhône v. The Peter A.B. Widener,
1993 CanLII 163 (SCC), [1993] 1 S.C.R. 497. The appellant submits that the Crown adduced no evidence that would meet the test laid down in
The Rhône. Alternatively, it submits that the trial judge did not adequately direct the jury with respect to corporate criminal liability as now explained in
The Rhône.
The appellant also argues that the trial judge misdirected the jury with respect to the outer limits of the identification doctrine. Finally, the appellant argues that the trial judge erred in placing before the jury the doctrine of wilful blindness as a new theory of liability. We called on the Crown to respond to these submissions.

B. Application of the Identification Doctrine to a Non-Profit Religious Corporation

1. The Facts

The issue of the application of the identification doctrine to the prosecution of a non-profit religious corporation was raised before the trial judge in a pre-trial motion to quash the committal for trial and for an order under
s. 24(1)
of the Charter
staying the proceedings for violation of freedom of religion in s. 2(a) of the
Charter. This application was expanded to include allegations of violations of the freedom of association in
s. 2(d), the right to life, liberty and security of the person in
s. 7
and the presumption of innocence in s. 11(d). The application was argued on the basis of the transcript from the preliminary inquiry and
viva voce
evidence from religious and sociological expert witnesses called by the corporate appellant. The evidence adduced at trial did not differ materially from the evidence at the preliminary inquiry.

The appellant Church of Scientology of Toronto was incorporated as a corporation without share capital on September 8, 1967, under Part III of the Ontario
Corporations Act
(now R.S.O. 1990, c. C.38). Its objects at the time were as follows:

(i) to accept and adopt the aims, purposes, principles and creed of the Church of Scientology of California;

(ii) to propagate the religious faith known as Scientology, believing that man's best evidence of God is the God he finds within himself and trusting with enduring faith that the Author of the Universe intended life to thrive within it; and

(iii) to print and publish articles, books, lessons, periodicals, radio and/or television script or other media for the purposes of dissemination of the religious faith, Scientology, to the membership and/or the public.

The
Corporations Act
allows for a corporation without share capital to have an unlimited number of members of the corporation. The Church of Scientology of Toronto, however, had only three members. The parishioners were not members, although they did pay tithes to the Church. The Act also requires a corporation to have a board of directors to conduct the affairs of the corporation. The evidence indicated, however, that the board of directors was a mere figurehead and that the real executive authority lay in the Guardian's Office and the FLAG Bureau. During the relevant time period, the Assistant Guardian Toronto was shown on the corporate filings as a director of the corporation. A corporation under Part III of the Act is to be carried on without the purpose of gain for its members and any profits are to be used in promoting the objects of the corporation. As I understand the theory of the appellant, the corporation held the property in trust for the parishioners, and the board of directors or the members acted as trustees.

The religious and sociological expert witnesses for the corporate appellant testified about the effect of the criminal prosecution. They noted that they were unaware of any previous criminal prosecution of a religious institution or corporation in the "free world". They emphasized the concern that prosecution of a religious body implicates the parishioners in the wrongdoing since the public is unable to distinguish between the church as an institution and its individual adherents. Further, the public is unable to distinguish between the Church of Scientology of Toronto as a corporate entity and the Church of Scientology and its faith in general. In effect then, prosecution of the corporate entity stigmatizes the religion and its parishioners. The witnesses also testified that the prosecution of a religious body impairs the capacity of the religious community to participate in the institutional life of a society. The criminal charges suggest an element of hypocrisy within the Church in the sense that while the adherents teach one thing, they act another way and thus are not worthy of being followed or supported financially. The witnesses further noted that the negative effects of prosecution on newer religions such as Scientology are more profound than on established religions.

2. Ruling of the Trial Judge

The trial judge held that the fact that the corporate appellant is a religious organization does not render it immune from prosecution. In this regard, he relied on the decision of this court in
Re Church of Scientology et al. and the Queen (No.6)1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449. The trial judge was satisfied that the identification doctrine of corporate criminal liability applies to a non-profit corporation with religious objects. He held that the prosecution of the appellant did not involve any limit on the freedoms of religion or association in
s. 2
of the Charter
because the illegal acts of the members of the Guardian's Office were not condoned by the Church doctrine. He also concluded that the prosecution did not violate the s. 7
right to life, liberty or security of the person of any human being, and that the s. 11(d) presumption of innocence was not violated.

3. The Issue

Although the evidence on the application before the trial judge would appear to raise the broad issue of the propriety of
any
criminal prosecution of a religious corporation, the appellant does not seem to argue that a religious corporation can never be prosecuted criminally. Rather, it makes a narrower argument. The appellant argues that prosecution through the identification doctrine
violates ss. 2(a),
2(d),
7
and 11(d) of the
Charter. It submits that a religious corporation can only be convicted if the board of directors either authorized the illegal activity or failed to exercise due diligence to prevent it.

4. Analysis

For the reasons that follow, I would hold that the identification doctrine as explained in
Canadian Dredge & Dock
applies to non-profit corporations established for religious purposes. Since s. 7
of the Charter
does not apply to corporations, it is unnecessary to determine whether the doctrine infringes s. 7. I am satisfied that the doctrine does not violate
s. 11(d) of the
Charter. Assuming without deciding that the identification doctrine infringes the freedoms of religion and association as guaranteed by
ss. 2(a) and
2(d) of the
Charter
respectively, that infringement constitutes a reasonable limit in a free and democratic society under s. 1. In the result, it is unnecessary to decide whether the appellant has standing to rely on
s. 2
of the Charter.

(a)
The Identification Doctrine

The theoretical impediment to attributing criminal liability to a corporation, an artificial entity, is the requirement for most crimes that the accused be proved to have
mens rea. This obstacle had been overcome at common law by attributing to the corporation the acts and the state of mind of certain of its agents. In
Canadian Dredge & Dock,
Estey J., for the Supreme Court of Canada, explained the theoretical basis for attributing criminal liability to a corporate entity through the "identification doctrine", and set out the elements and certain limits of liability. The essential holdings in the case can be briefly summarized for the purposes of this appeal.

Estey J.'s discussion of the identification doctrine assumed that a corporation would be liable under the doctrine for the criminal acts of its board of directors. He held at p. 682 that the corporation will also be liable for the criminal acts of the employee who is its "alter ego" or "directing mind", based on the notion that the identity of the directing mind and the identity of the corporation coincide. He also considered some of the circumstances in which the corporation would not be liable for the acts of the directing mind. The acts of the directing mind must be performed within the scope of his or her authority or, put another way, when the directing mind is "carrying out his assigned function in the corporation" (at p. 685). Even then, Estey J. stipulated at p. 713 that the corporation will not be liable where the directing mind was acting totally in fraud of the corporation and where the act was intended to and does result in benefit exclusively to the directing mind. As will be seen below when considering
The Rhône,
one of the important issues left to the jury in this case was whether the persons alleged to be directing minds of the corporate appellant were carrying out a function assigned to them by the corporation.

Mr. Ruby, on behalf of the corporate appellant, does not take issue with the aspect of the identification doctrine that imposes liability on the corporation for the acts of the board of directors. He argues, however, that the broader aspects of the doctrine should not be applied to non-profit corporations and particularly those with religious objects.

(b)
Does the Identification Doctrine Apply to Non-Profit Corporations?

The identification doctrine as explained in
Canadian Dredge & Dock represents a compromise between immunity for corporations and the imposition of vicarious liability on the corporation for any of the acts of its agents. As Estey J. explained, the increasing importance of corporations in society, and particularly as they became the principal vehicle of commerce in the community, made it imperative that they be subject to the criminal law in some fashion.

Mr. Ruby submits that the rationale for the identification doctrine reveals that it was never intended to apply to non-profit corporations without share capital. He points out that the initial motivation for extending criminal liability focused on the fact that the corporation had become the principal vehicle of commerce. Non-profit corporations are not involved in commerce in this sense. They do not have shareholders, and any profits are to be used to further the objects of the corporation rather than to enrich the members. Mr. Ruby relies particularly on the following passage from
Canadian Dredge & Dock
at p. 694:

The corporation which set the directing mind in position to do the wrong will suffer an economic penalty.
While it is true that this penalty will feed through to the stockholders, who may well be totally innocent as in the case of a large public company, it may be seen as a risk or cost associated with the privilege of operating through the corporate vehicle. In the case of personal corporations, the imposition of a criminal penalty on the corporation may be an additional penalty imposed upon the 'personal' corporate stockholder but such a result would be an acceptable part of the sentencing process as it simply reflects the economic identification, as well as the legal identification, present in such a corporation. In the case of a public corporation, the economic identification factor is absent, and in a theoretical sense there is an additional penalty for the same act which must be justified in some way other than that suggested above. This is the inevitable result of the pragmatic adoption of the attribution of the acts of its delegates to the delegating corporation in order to bring that corporation within the system of criminal justice. Whether the route taken be the doctrine of
respondeat superior
or identification, the result is the same. The corporation in reality has three elements: the legal entity, the personal shareholder (a natural person directly or indirectly), and the employee. Once the process is set in motion, the criminal penalty will extend directly or indirectly to all three which is quite unlike the situation of a natural proprietor where only two of these elements are present. All this, in my view, while not entirely logical, is a tolerable result for a community where reality dictates corporate criminal accountability in certain circumstances. [Emphasis added.]

In my view, the identification doctrine is fully applicable to non-profit corporations without share capital. The rationale for the imposition of criminal liability on corporations is not that they make profit or are engaged in commerce, or even that they have shareholders. Rather, since corporations occupy such a central role in society, it would be unacceptable to have them operating outside the criminal law.

As the excerpt quoted above indicates, Estey J. recognized that the economic penalty may feed through to shareholders who, in a large public corporation, are totally innocent. This was nevertheless a "tolerable result," and a risk or cost associated with the privilege of operating through the corporate vehicle. The same may be said for the non-profit corporation. The economic penalty may be borne by the members or, as in this case, the parishioners who may be totally innocent. This is, however, a risk or cost associated with the privilege of operating through the corporate vehicle. In this respect, I note that the members enjoy the same special protection from liability as shareholders of a business corporation.
Section 122
of the Corporations Act
provides as follows:

122. A member shall not, as such, be held answerable or responsible for any act, default, obligation or liability of the corporation or for any engagement, claim, payment, loss, injury, transaction, matter or thing relating to or connected with the corporation.

Although he did not refer directly to non-profit corporations, Estey J. clearly contemplated that such corporations must be brought within the fold of criminal liability, and that the identification doctrine was the appropriate basis for doing so. After pointing out that criminal liability for a human actor is personal and that he or she is not responsible for the acts of an agent, Estey J. said at p. 692:

On the other hand, the corporate vehicle now occupies such a large portion of the industrial, commercial
and sociological sectors
that amenability of the corporation to our criminal law is as essential in the case of the corporation as in the case of the natural person. [Emphasis added.]

The evidence in this case bears out the important role of the non-profit corporation in modern society. The latest figures available at the time of trial indicated that there were over 25,000 corporations without share capital incorporated in Ontario; that there were approximately 65,000 registered charities in Canada, and almost 30,000 of these carry out religious activities; and that Canadian taxpayers donated almost $3 billion to charities. To leave these organizations outside the purview of the criminal law would be intolerable. Some of the most important activities undertaken in society are performed under the umbrella of the corporate vehicle. I can see no rational basis for adopting a different test for criminal liability in the case of non-profit corporations solely because they do not have shareholders or because any profits are used to promote the objects of the corporation rather than to enrich the shareholders personally. The need for regulation of the conduct of the corporation through the criminal law is the same.

Accordingly, subject to the arguments under the
Charter,
which were not available in Canadian Dredge & Dock, a pre-Charter
case, I am satisfied that the identification doctrine applies to this corporate appellant.

The appellant argues that imposing liability on a corporation through the identification doctrine infringes
ss. 7
and 11(d) of the
Charter. The argument, as I understand it, is that even though Estey J. avoided reliance on vicarious liability in his description of the identification doctrine, in reality, the doctrine has the potential to find a corporation criminally liable in the absence of what Mr. Ruby terms "corporate fault". Mr. Ruby seems to argue that corporate fault can only be based on the actions and
mens rea
of the board of directors. This would require proof that the board of directors either authorized the criminal activity or failed to exercise due diligence to prevent the wrongdoing by the directing minds other than the board of directors.

The first problem with this argument is to locate it within the proper constitutional provision. To the extent that the argument depends on
s. 7
of the Charter, the appellant can have no relief. It is clear that
s. 7
does not apply to corporations. In Irwin Toy Ltd. v. Quebec (Attorney General),
1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, Dickson C.J.C., for the majority, summarized at p. 1004 the holding that
s. 7
does not apply to corporations:

That is, read as a whole, it appears to us that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved; only human beings can enjoy these rights. "Everyone" then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. In this regard, the case of
R. v. Big M Drug Ltd.
[1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295] is of no application. There are no penal proceedings pending in the case at hand, so the principle articulated in
Big M Drug Mart
is not involved. [Emphasis added.]

Mr. Ruby attempts to avoid the effect of the decision in
Irwin Toy
by arguing that the imposition of liability upon this appellant affects the security interests of the members and parishioners of the Church. In my view,
Irwin Toy
also forecloses any reliance by a corporation on the
s. 7
rights of other actors. Dickson C.J.C. wrote the following at p. 1002:

In order to put forward a
s. 7
argument in a case of this kind where the officers of the corporation are not named as parties to the proceedings, the corporation would have to urge that its own life, liberty or security of the person was being deprived in a manner not in accordance with the principles of fundamental justice. In our opinion, a corporation cannot avail itself of the protection offered by s. 7
of the Charter.

Mr. Ruby also argues that the appellant is entitled to rely on the
caveat
in Irwin Toy
that, based on
Big M Drug Mart,
a corporate accused can, in penal proceedings, assert the alleged violation of an individual accused's
s. 7
right. However, unlike the law at issue in Big M Drug Mart, an individual could never be charged pursuant to the identification doctrine. Since that doctrine applies only to corporations, the logic of
Big M Drug Mart
does not apply. See comments of Lamer C.J.C. in R. v. Wholesale Travel Group Inc.,
1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154 at 181-82. Since the corporate appellant cannot invoke
s. 7, it is unnecessary to determine whether the identification doctrine infringes
s. 7.

The appellant's inability to rely on
s. 7
of the Charter
also forecloses any argument based on an alleged infringement of s. 11(d) of the
Charter. As Lamer C.J.C. explained in
R. v. Vaillancourt,
1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 at 654 -55, the presumption of innocence in
s. 11(d) requires that before an accused can be convicted, the trier of fact must be satisfied beyond a reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out in the relevant statute, but also those required as a matter of fundamental justice by
s. 7
of the Charter. The common law identification doctrine imposes liability upon the corporation for the unlawful acts of its directing minds, whether or not the board of directors authorized or was even aware of the acts, and whether or not the board exercised due diligence to prevent the commission of those acts. Since
s. 7
of the Charterdoes not apply to corporate liability, no additional elements are implied. The corporate appellant's rights under
s. 11(d) are therefore not infringed.

The corporate appellant argues that the application of the identification doctrine to a non-profit religious corporation infringes the freedom of religion guarantee in
s. 2(a) of the
Charter.
Mr. Bernstein raises a standing argument here, as he did in relation to the issue of eligibility for service on a jury. He submits that a corporation cannot have a religion, and the appellant therefore has no right to invoke
s. 2(a) of the
Charter. He points out that
Big M Drug Mart,
itself a freedom of religion case, does not apply since by definition the identification doctrine applies only to corporations.

I see a vast difference between an accused attempting to invoke the rights of potential jurors who have no connection to the accused, and a corporation with religious objects invoking the religious freedom of its parishioners. Although it has a corporate form, the corporation embodies to some extent the beliefs of its human parishioners. The identification between the corporation and the parishioners is so close that I would be reluctant to find that the corporation could not rely on the religious freedom of its parishioners.

In
R. v. Edwards Books and Art Ltd.,
1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, four retailers argued that the provincial Sunday closing legislation under which they had been charged violated
s. 2(a) of the
Charter. In dealing with the accused's submission that even if the purpose of the legislation was not to infringe freedom of religion it had that effect, both Dickson C.J.C. and Beetz J. appeared to assume that the accused corporations could rely on the
s. 2(a) rights of their individual customers. Dickson C.J.C. noted that the legislation abridged the religious freedom of consumers who observe Saturday rather than Sunday as a day of rest. Beetz J. also dealt with the impact on consumers, but found that the evidence was so tenuous as to be insufficient to establish even a
prima facie
infringement of s. 2(a).

The question of standing was not addressed explicitly in
Edwards Books. Nevertheless, there is the implicit suggestion in the reasons that in a proper case, an accused can rely on the religious freedom of other persons who are directly affected by the prosecution of the accused. Similar reasoning may be applied to the Crown's assertion that the appellant has no standing to assert the freedom of association of the members or parishioners of the Church. Because of the uncertainty as to the appellant's standing under
ss. 2(a) and
2(d), I would prefer to deal with these arguments on their merits.

In
Edwards Books
at pp. 758-59, Chief Justice Dickson held that indirect coercion by the state is "comprehended within the evils from which s. 2(a) may afford protection." He then explained the limits of the protection from indirect burdens afforded by
s. 2(a):

Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion.
Otherwise the
Charter
would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship. In my opinion, it is unnecessary to turn to
s. 1
in order to justify legislation of that sort. ... The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short,
legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this point,
R. v. Jones,
1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284,
per
Wilson J. at p. 314. [Emphasis added.]

The appellant's argument, in essence, is that prosecution of this religious corporation through the identification doctrine constitutes a non-trivial burden on the practice of the Scientology religion by its members and parishioners. Those persons are forced to bear the cost of the defence and to suffer the stigmatization of prosecution. If the corporation is convicted, the members and parishioners must raise funds to pay the fine or risk loss of the Church property, including their place of worship. The burden of defending a serious criminal charge is far more severe than the modest sales tax example used by Dickson C.J.C. in
Edwards Books.

The Crown responds that this issue has been determined against the appellant by the decision of this court in
Re Church of Scientology et al. and the Queen (No. 6). The issues in that case concerned the validity and execution of search warrants at the Church premises in Toronto. The material seized during the searches played some part in the subsequent prosecution. This court held that although it is not the function of the courts to pass judgment on the validity of any particular religious belief, it would not be appropriate for the court to rule that the allegations against the appellant Scientology were not justiciable. The court made some broad comments about the application of the criminal law to religious practices at pp. 469-70:

In our opinion, the criminal law of Canada does operate to limit religious practices even when based upon sincerely or genuinely held religious beliefs. Freedom of religious practice or conduct is not absolute, and is subject to laws of general application established to protect public safety, order, health, morals, or the fundamental rights and freedoms of others. Freedom of religion has not prevented Canadian courts in the past from restricting sincerely held religious beliefs or practices in cases of compelling public interest. Even in the case of
United States v. Ballard
[(1944), 322 U.S. 78],the court, at p. 87, adopted the statement in
Davis v. Beason
(1890), 133 U.S. 333 at p. 342:

With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted,
provided always the laws of society designed to secure its peace and prosperity, and the morals of its people, are not interfered with.

[Emphasis added.]

The appellant Scientology relies on
R. v. Big M Drug Mart Ltd., supra,
to support its position on this point.
However, with great respect to those advocating the contrary, we do not believe that
Big M Drug Mart
assists a proponent of the view that the actions of a church are non-justiciable. We do not take Chief Justice Dickson's reference to religious "practices" to mean that "practices" that are otherwise illegal are to be protected by freedom of religion. In fairness to the appellant, counsel conceded that to the extent that religious beliefs run afoul of criminal law proscriptions such as those relating to bigamy or the use of drugs, a belief in polygamy or the use of hallucinogenic drugs is not a defence. Those who practise these beliefs, as opposed to merely holding them, can be subject to attack. We accept that any citizen, whether motivated by religious beliefs or otherwise, is entitled to his or her own opinion as to the validity of the laws of this country. Debates as to abortion, capital punishment and euthanasia are examples of issues where the courts will not interfere with thought or the exercise of free speech. However, as will be developed later,
one could conclude that the appellant Scientology, in the instances alleged by the informant, has gone well beyond postulating controversial religious beliefs and, through its senior officers, is committing a number of serious criminal acts. [Emphasis added.]

In my view,
Re Church of Scientology et al. and the Queen (No. 6)
establishes that a corporation with religious objects is not immune from prosecution for the commission of criminal acts. There is also much to be said for the respondent's submission that this court has held that such prosecution does not infringe freedom of religion.

However, Mr. Ruby submits that the basis upon which the corporation is held liable is still an open question in this court. As pointed out above, Mr. Ruby advances the position that although prosecution of a corporation with religious objects does not
per se
infringe freedom of religion, the application of the identification doctrine to such a corporation does. He argues that while it may be tolerable for the state to prosecute a corporation with religious objects for the criminal acts of persons in charge of the corporation, namely the board of directors, this does not justify punishing the corporation for the wrongdoing of other employees or agents. As I understand the argument, in effect, vicarious liability is imposed on the "innocent" corporation and the "innocent" parishioners and members for the acts of persons who may be acting largely for their own purposes and at odds with the religious doctrine and who do not have the authority of the "trustees" of the corporation's assets.

Although Estey J. in
Canadian Dredge & Dock
suggested at p. 683 that the identification doctrine creates liability in the corporation on a "primary" rather than "vicarious" basis, he later conceded at p. 692 that, of necessity, any attribution of liability to a corporation will be vicarious in some sense:

Thus where the defendant is corporate the common law has become pragmatic, as we have seen, and a modified and limited 'vicarious liability' through the identification doctrine has emerged. In this context I use the word "vicarious" in the sense that it is defined in the principal dictionaries, including the
Shorter Oxford English Dictionary
(1959), where the term is defined: "that takes or supplies the place of another thing or person; substituted instead of the proper thing or person."

We must also remember that corporate criminal liability is essentially vicarious liability based upon the acts and omissions of individuals: "a corporation may only act through agents" (Canadian Dredge & Dock
[citation omitted] at p. 675). Extending
Charter
guarantees to corporations will, in some circumstances, afford a measure of protection to those individuals. [Emphasis added.]

I am prepared to assume, without deciding, that the common law identification doctrine constitutes a non-trivial burden on the practice of the Scientology religion and therefore infringes
s. 2(a) of the
Charter. For the reasons set out below, however, I am satisfied that this common law rule is a reasonable limit under
s. 1
of the Charter.

In
R. v. Swain,
1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, Lamer C.J.C. explained the application of
s. 1
to a common law rule. He held at pp. 978-89 that if it is possible to reformulate a common law rule so that it would not infringe the Charter,
such a reformulation should be undertaken. If it is not possible, the court must consider whether the common law rule can be upheld as a reasonable limit under s. 1.

In this case, it is necessary to resort to the
s. 1
analysis. There is no reformulation of corporate criminal liability that will not infringe s. 2(a) of the
Charter. The mere prosecution of the Church will stigmatize the parishioners and members, and divert funds from religious purposes to defence of the charge. Even if the prosecution were limited to the acts of the board of directors, it would infringe freedom of religion since liability would still be imposed on the corporation on a vicarious basis. The "innocent" parishioners would be required to fund the defence, and Church property would be at risk if the Church were convicted and a fine imposed.

1. the objective of the impugned provision must be pressing and substantial; and

2. the means chosen to achieve the objective must pass a proportionality test; that is to say, they must:

(a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right or freedom in question as "little as possible"; and

(c) be such that their effects on the limitation of the right or freedom are proportionate to the objective.

(i) Objective

The objective of applying the identification doctrine of criminal liability to corporations with religious objects relates to a fundamental tenet of our society, namely, that no person is above or beyond the law. The
Charter
itself in the preamble recognizes the supremacy of the rule of law. While there is no precise definition of the rule of law, it surely embraces the second of Dicey's three principles of the rule of law: the equal subjection of all classes to the ordinary law: Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (1959), at p. 193. In
R. v. Turpin,
1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296 at 1329, Wilson J., referring to the guarantee of equality before the law in
s. 15
of the Charter, noted that this value has "historically been associated with the requirements of the rule of law that all persons be subject to the law impartially applied and administered."

Having regard to the important position that corporations occupy in modern society, subjecting corporations -- including those with religious objects -- to the ordinary criminal law is a pressing and substantial objective, and is implied by the rule of law.

(ii) Rational Connection

The identification doctrine is a pragmatic but rational way of making a corporation liable for criminal acts committed on its behalf or at least partly for its benefit. In contrast to the American doctrine of
respondeat superior,
which holds a corporation liable for the acts of any employee performed within the scope of employment, the identification doctrine represents a relatively limited response to the necessity of bringing all corporations within the purview of the criminal law. It imposes liability only for the acts of the corporate governing body and those to whom that body has delegated executive authority. Moreover, even if the employee is deemed to be a directing mind of the corporation, the corporation will not be liable for that employee's acts if they are in total fraud of the corporation. As Estey J. wrote in Canadian Dredge & Dock
at p. 719:

The identification theory, however, loses its basis in rationality when it is applied to condemn a corporation under the criminal law for the conduct of its manager when that manager is acting not in any real sense as its directing mind but rather as its arch enemy.

Given these limitations on the identification doctrine, I am satisfied that it is rationally connected to the objective.

(iii) Minimal Impairment

At this stage of the proportionality analysis, the court must ask whether the impugned law infringes the
Charter
right "as little as possible". In the case of a common law rule, less judicial deference is warranted than in the case of a legislative provision. The court must adopt "the least intrusive common law which will attain the objectives without disproportionately affecting rights": R. v. Swain
at p. 984. This requires the court to explore alternative means of achieving the pressing and substantial objective.

At the outset, it is important to note the limitations on the identification doctrine. As Estey J. explained in
Canadian Dredge & Dock
at p. 693:

[The identification doctrine] merges the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation.

The doctrine does not, however, extend criminal liability to any other agents or employees. Further, the identification doctrine operates only where the directing mind is acting within the scope of his or her authority. Finally, even if the act is committed by a directing mind of the corporation carrying out his or her assigned function, no liability will be attributed to the corporation where the criminal act is totally in fraud of the corporate employer and where the act is intended to and does result in benefit exclusively to the employee.

The appellant suggests the imposition of corporate criminal liability, in the case of a non-profit religious corporation, only where the board of directors either authorized the illegal activity or failed to exercise due diligence to prevent it. Arguably, this alternative approach would address one of the objectives of the imposition of criminal liability by forcing the corporation to improve its organizational structure to prevent criminal wrongdoing within the organization. Liability based on the acts or omissions of the board would encourage the board to adopt policies to ensure clear lines of accountability, and that it received adequate information of corporate activity.

However, failing to impose corporate criminal liability for the acts of the directing minds who are not on the board of directors fails to take into account one of the fundamental rationales for imposing criminal liability on the corporation in the first place. The wrongdoing of the agents of a corporation is not done in a vacuum and, ordinarily, not solely to profit the individual agent. As Professor Dawn Russell points out in "Paedophilia: The Criminal Responsibility of Canada's Churches" (1992), 15
Dalhousie L.J.
380 at 394 in comparing the for-profit corporation and the church, "[M]uch of the corporate wrongdoing done by both of these types of organization is attributable to the phenomena of institutional loyalty or of loyalty of their agents to the goals of the institution." The agents commit the criminal acts not for personal gain, but to protect the institution and its reputation. To fail to impose criminal liability on the corporation for acts of persons with managerial responsibility acting in the name of the corporation would result in a substantial gap in the deterrent objective of the criminal law. In fact, it could encourage managers to become more secretive to protect the corporation while they engage in illegal activities for the perceived greater good of the corporation.

The imposition of criminal liability on the corporation with religious objects for the acts of its managers is also necessary to protect vulnerable persons within the hierarchy. The managers have the day-to-day responsibility for the use of vast sums of money for important societal purposes. To relieve the corporation of liability when the managers have abused their positions to benefit the corporation would aggravate the powerlessness of the victims. In this case, the victims were large, powerful institutions such as the O.P.P. and the Ministry of the Attorney General. In another case, however, the victims could be the parishioners or members themselves.

To say that the individual managers could be prosecuted is simply not an adequate response. It fails to take into account that the acts are not for personal gain, but for the benefit of the institution. The Guardian's Office operated not to benefit its members or even the individual parishioners. The plant operations were for the benefit of the Church of Scientology of Toronto as an institution, to enable it to carry on as an institution. Notwithstanding the significant stigma of a criminal conviction, it is entirely appropriate that the institution be held accountable for the wrongdoing of the individuals whom it put in a position to perpetrate these crimes on its behalf.

In addition to failing to achieve the objective of bringing religious corporations under the criminal law, it is unclear to me how the appellant's proposed alternative would impair the freedom of religion any less than the identification doctrine. That doctrine already imposes liability for the acts or omissions of the board of directors, but only where there is
mens rea. Mere negligence or lack of due diligence by the board does not render the corporation liable for criminal offences. Imposing criminal liability for the negligence of the board might, in fact, be more intrusive of the freedom of religion. As Mr. Bernstein points out, many non-profit corporations rely on volunteer boards of directors. The day-to-day management of the corporation is delegated to its managers. Imposing criminal liability based on negligence by the board of directors would force these volunteers to become more involved in the day-to-day operations. This would no doubt be a positive development from the standpoint of its potential to prevent corporate crime. It would, however, make it that much more difficult to attract people to serve on these boards.

Further, if the courts were to adopt a lower standard of criminal liability for corporations with religious objects, this would necessarily invite inquiry into whether these objects were genuine or a mere sham to take advantage of the preferential treatment. This would not be difficult for the established religions. The smaller, lesser known sects, those groups that are most vulnerable to the tyranny of the majority, would be at greatest risk. Their religious beliefs and practices would be placed on trial. This would be a highly undesirable consequence and essentially at odds with the
Charterguarantee of freedom of religion. As Henry Hansmann observes in "The Evolving Law of Nonprofit Organizations: Do Current Trends Make Good Policy?" (1988-89), 39
Case Western L. Rev.
807 at 820, "[T]he best way to assure that organizational law neither penalizes nor promotes religion is to keep it from discriminating between religious and non-religious organizations."

Imposing liability on the religious corporation on a different basis than a secular corporation would also disadvantage religious corporations in other ways. Holding the religious corporation to a lower standard may simply aggravate the mistrust that some feel towards religious organizations. Hansmann makes this point in relation to fundraising at pp. 819-20:

The usual argument offered to justify a lower degree of accountability for religious organizations, in corporate law and elsewhere, is that higher standards would be excessively intrusive and would interfere with the separation of church and state.
But this argument is unpersuasive, at least in the context of corporate law. Indeed, one might argue that establishing weaker standards of accountability for religious nonprofits actually
disadvantages
religious organizations relative to secular ones. These low standards result in a greater opportunity for fraud among religious organizations, leading to a spirit of distrust toward such organizations on the part of those who would otherwise support them. This distrust handicaps those organizations in raising funds and otherwise securing the commitment and support of the public. [Emphasis added.]

For the above reasons, I am of the view that the application of the identification doctrine to non-profit religious corporations infringes the appellant's
Charter
rights "as little as possible". It is not possible to fashion a different rule of criminal liability for such corporations that will attain the objective and be less intrusive of Charter
rights.

(iv)
Proportionality of Effects

The final step of the proportionality test requires that there be a "proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures":
Digeneous v. Canadian Broadcasting Corp.,
1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 at 889.

Given the limits on the reach of the identification doctrine and the importance of the rule of law and protection of the vulnerable, I am satisfied that there is an appropriate proportionality between the deleterious effects of the application of the identification doctrine and the objective. I also believe that the deleterious effects do not outweigh the salutary effects. The appellant's own evidence established that
any prosecution, even of the individual perpetrators, would have a significant deleterious effect on the organization and its parishioners and members. This stigmatization is inevitable whether or not the corporation itself is prosecuted and whether or not liability is limited to the acts of the board of directors. I cannot see how any additional stigmatization and related deleterious effects from the identification doctrine outweigh the salutary effect of vindicating the rule of law.

In contrast, for the reasons set out above in relation to minimal impairment, the deleterious effects of the appellant's proposed modification to the common law rule would, in my view, far outweigh the alleged salutary effects of such a solution. This ground of appeal fails.

The corporate appellant also relies on freedom of association in
s. 2(d) of the
Charter. In my view, assuming the identification doctrine violates
s. 2(d), for the reasons already given in relation to freedom of religion I am satisfied that any violation of
s. 2(d) can be justified under
s. 1
of the Charter. The freedom of association that the appellant seeks to invoke is the freedom to associate for religious purposes. Nothing is added to the argument by invoking
s. 2(d).

XI. APPLICATION OF THE IDENTIFICATION DOCTRINE TO THIS CASE

A. The Application of
The Rhône

The corporate appellant argues that even if the identification doctrine applies to it, the trial judge failed to direct the jury properly on the doctrine as it is now understood in light of the Supreme Court's decision, after the trial in this case, in
The Rhône v. The Peter A.B. Widener.
In fact, the appellant submits that based on the law as enunciated by Iacobucci J. in
The Rhône,
there was no evidence upon which the appellant could be convicted. The appellant relies mainly on the following excerpts from The Rhône
at pp. 520-21 and 526:

As Estey J.'s reasons [in
Canadian Dredge & Dock] demonstrate, the focus of inquiry must be whether the impugned individual has been delegated the "governing executive authority" of the company within the scope of his or her authority. I interpret this to mean that one must determine whether the discretion conferred on an employee amounts to
an express or implied delegation of executive authority to design and supervise the implementation of corporate policy rather than simply to carry out such policy. In other words, the courts must consider who has been left with the decision-making power
in a relevant sphere of corporate activity. [Emphasis added.]

. . . .

With respect, I think that the courts below overemphasized the significance of sub-delegation in this case.
The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis, whether at head office or across the sea. While Captain Ketch no doubt had certain decision-making authority on navigational matters as an incident of his role as master of the tug
Olio
and was given important operational duties, governing authority over the management and operation of Great Lakes' tugs lay elsewhere. [Emphasis added.]

The appellant submits that the trial judge never instructed the jury that to find the appellant guilty on the basis of the identification doctrine, it must be shown that persons alleged to be the directing minds of the corporation had been delegated authority to design and supervise the implementation of corporate policy. The appellant further submits that the bulk of the evidence in this case is that persons such as Bryan Levman had no authority to design corporate policy. Rather, their role was to implement policies established elsewhere and, in particular, by the Guardian Jane Kember and the officials in the Guardian's Office World Wide.

In my view, the decision of the Supreme Court of Canada in
The Rhône
did not apply to this case, and the trial judge properly directed the jury with respect to corporate criminal liability. The discussions by Iacobucci J. in The Rhône
and Estey J. in Canadian Dredge & Dock
are premised on a corporate structure in which ultimate executive authority lies with the board of directors. The identification doctrine renders the corporation liable as a result of the acts, in addition to those of the board of directors, of those persons to whom the board has expressly or impliedly delegated executive authority. That, however, was not this case. The Church operated in the context of a rigid command structure in which the board of directors was irrelevant. The board of directors did not appoint, much less delegate to, the senior officials of the Church. In fact, the members of the board were themselves required to sign undated letters of resignation. The evidence is clear that the appellant's board of directors had no executive authority. Thus, it is beside the point to attempt to apply principles relating to the degree of delegation of that authority.

At trial, the issues of corporate liability did not concern whether the illegal acts were carried out with the knowledge of or by persons with executive authority. The only real issues were whether information-gathering was within the scope of authority of the persons in control of the Guardian's Office and, more importantly, whether the Guardian's Office was an autonomous body, separate and apart from the Church of Scientology of Toronto. The trial judge's directions on these two issues were clear and unimpeachable. The following excerpt from the charge to the jury demonstrate the context in which the issues were developed at the trial:

The real issue in this case, however, with respect to the corporate accused, is whether the information-gathering activities of the Guardian Office in Toronto were a field of operation of Church of Scientology of Toronto, assigned to the Guardian Office in Toronto by Church of Scientology of Toronto.

The theory of the defence of Church of Scientology of Toronto is that the information-gathering activities of the Guardian Office in Toronto were not a field of operation of Church of Scientology of Toronto, and were not assigned to the Guardian Office in Toronto by Church of Scientology of Toronto. And every time I say the name, I am trying to emphasize "Toronto", because there are, of course, other corporations in Canada and in the United States which are "Church of Scientology of" - such as Vancouver - and they are not concerned with Church of Scientology of Toronto, whose head offices and its offices were located in the City of Toronto.

The defence submits that the field of operation that the people in the Guardian Office in Toronto were concerned with was a field of operation of the Guardian Office, which was an autonomous body, separate and apart from the persons or organizations that control the delivery of the services of Scientology to adherents throughout the world.

This direction was repeated in one form or another with respect to each count. For example, in relation to the breach of trust count respecting the Ministry of the Attorney General, the trial judge directed the jury as follows:

In this case,
in respect of any count in which you are satisfied that persons in the Guardian Office in Toronto were parties to the offence charged by aiding it, directing it, or counselling it, you must decide whether, in relation to the criminal act, the persons in the Guardian Office were the directing mind of the Church of Scientology of Toronto within a field of operation assigned to them.

Now, I referred you to Exhibit 5, the policy letter setting up the office of the Guardian (it is dated March the 1st, 1966), and I suggested to you, though I emphasized again that this is a matter for your decision as the triers of fact, that you could reasonably conclude, on the evidence, that the gathering of intelligence for the protection of Scientology was a field of operation that had been assigned by L. Ron Hubbard to the Guardian, and that the persons in the Guardian Office in Toronto who were directing or engaged in the plant activities were engaged in that field of operation, and I suggested to you that the real issue in this case, with respect to the corporate accused, is whether the information-gathering activities of the Guardian Office in Toronto were a field of operation of Church of Scientology of Toronto, assigned to the Guardian Office in Toronto by the Church of Scientology of Toronto.

The theory of the defence of the Church of Scientology of Toronto is that the information-gathering activities of the Guardian Office in Toronto were not a field of operation of Church of Scientology of Toronto, and were not assigned to the Guardian Office in Toronto by Church of Scientology of Toronto. Instead, the defence submits, the field of operation is that of the Guardian Office, which was an autonomous body, separate and apart from the organization that controlled the delivery of the services of Scientology to adherents throughout the world. And I read you from the policy letter Exhibit 6.

Then I went on to refer to the evidence which I thought you might consider significant in deciding whether the persons in the Guardian Office in Toronto were separate and apart from Church of Scientology of Toronto so that their information-gathering activities could not be regarded as a field of operation of Church of Scientology of Toronto.

In light of these clear and repeated instructions, it is obvious that the jury was satisfied that information-gathering was a field of operation of the Church of Scientology of Toronto and that the persons in the Guardian's Office performing those operations were not part of an autonomous body, separate and apart from the delivery of Scientology services.

In the command structure of the Church of Scientology generally and the Church of Scientology of Toronto in particular,
de facto
control was divided between the Executive Director and the Assistant Guardian Toronto. The Board of Directors was, on the evidence, irrelevant. Accordingly, once the jury found that the Guardian's Office Toronto was not an autonomous body, they were bound to find the appellant liable for the unlawful acts committed by the persons in that office, inasmuch as de facto
control resided there.

In
Canadian Dredge & Dock,
Estey J. said at p. 701 that the identification theory was "inspired in the common law in order to find some pragmatic, acceptable middle ground which would see a corporation under the umbrella of the criminal law of the community but which would not saddle the corporation with the criminal wrongs of all of its employees and agents." This pragmatic approach dictates that the corporation be liable for the acts of persons in de facto
control of the corporation, be it the board of directors or, as in this case, the persons in control of the board of directors. The dicta
from The Rhône
was, in my view, not intended to apply to a case where there is no issue of delegation. Counsel for the appellant concedes as much. Mr. Ruby agrees that the identification doctrine would not apply here if the board of directors had authorized the illegal acts. Similarly, where the most senior officials in the corporation having de facto
control of the corporation have committed the criminal acts or authorized them, no issue of delegation of executive authority arises. To hold otherwise would mean that this corporation had no directing mind. This is simply not a sensible or pragmatic position.

Moreover, in my view, even if the principles in
The Rhône
applied to this case, they must be adapted to the facts as they existed here. It may be that the Assistant Guardian Toronto and the other senior officials in the Guardian's Office Toronto had limited discretion to set policy on matters of information-gathering. However, whatever executive authority did exist within the Church with respect to those matters resided with the senior officials in the Guardian's Office. The Assistant Guardian, for example, was accountable to no one within the Church. He was free from control and instruction by the board of directors and the Executive Director. For these reasons, I would not give effect to this ground of appeal.

B. Trial Judge's Direction on Corporate Criminal Liability

The trial judge properly instructed the jury with respect to the two central corporate criminal liability issues in the case: field of operation and the alleged autonomous nature of the Guardian's Office. The appellant argues that the trial judge did not adequately direct the jury with respect to the limits of corporate criminal liability. In
Canadian Dredge & Dock,
Estey J. defined those limits in the following terms at pp. 713-14:

[I]n my view the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation; and (c) was by design or result partly for the benefit of the company.

The trial judge expressed the opinion that the jury would have little difficulty in finding that the Crown had proven that the acts were not totally in fraud of the Church and that they were intended to benefit the corporation. The trial judge did, however, leave those issues for the jury to determine.

Although the trial judge's directions were brief and accompanied by a relatively strong expression of opinion, they were adequate. Once the jury found that information- gathering was a field of operation assigned to the Guardian's Office and that the Guardian's Office was not separate and apart from the corporation, it was unlikely that they would nevertheless find that the senior Guardian's Office personnel were acting
totally
in fraud of the Church and did not intend
to benefit the Church. The illegal plant activity was designed to protect the Church from its perceived enemies. As the trial judge pointed out, the persons in the Guardian's Office who authorized or carried out the illegal acts received no direct personal benefit.

The appellant also argues that the trial judge erred in his charge by placing before the jury the "new" theory of liability of wilful blindness. The question of wilful blindness arose in response to submissions made by Mr. Ruby in his closing address to the jury. He told the jury that there was "not the slightest bit of evidence" to suggest that the board of directors ever authorized a criminal act. He also submitted that there was no evidence that the board had expressly or by implication assigned any field of operation to the Guardian's Office and that the Church could only act through its directors.

In his charge to the jury, the trial judge gave the following instruction, which the appellant alleges constituted a new theory of liability:

A further necessary inference, in my opinion - and this is a matter for your judgment - is that these members of the Board of Directors of Church of Scientology of Toronto either knew of the illegal plant activity, or were wilfully blind about what was being done behind the locked doors of the Guardian Office. The persons controlling a corporation cannot avoid corporate criminal responsibility by installing a board of directors who close their eyes to the conduct of the persons in control.

The reference to wilful blindness was repeated once more in relation to the control that the members or parishioners may have exercised:

Thus, the Church that was captured was either a corporation of which the parishioners were not even members, or it was a corporation whose members had chosen a board of directors that was, at best, wilfully blind about the plant activity that was accompanied by so much obvious secrecy. The directors of a corporation cannot avoid responsibility for themselves or the corporation by closing their eyes to suspicious circumstances that cry out for investigation.

I agree with the respondent that the trial judge might have avoided the use of the phrase "wilfully blind" only because it has come to have a special meaning in criminal law. See
R. v. Sansregret,
1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570. However, the appellant was not prejudiced by the reference to wilful blindness. Contrary to the appellant's submissions, the trial judge was not invoking a new theory of liability based on wilful blindness of the board of directors. Rather, he was pointing out that the persons who were in control of the corporation had set up a board of directors that had no real executive authority. He quite properly pointed out that, on the facts of this case, it was no
defence
that the figurehead board of directors may not have known about the illegal acts of the persons with de facto
executive authority.

When the charge to the jury is read as a whole, I am satisfied that there is no danger that the appellant was convicted on the basis of anything done or not done by the board of directors. For example, in relation to the count involving the Ministry of the Attorney General, the trial judge directed the jury as follows:

There is no evidence that the Church of Scientology authorized the Guardian Office in Toronto, either expressly or by implication, to participate in the unlawful plant operation -
that is, there is no evidence that the Board of Directors of the Church of Scientology gave such authority, expressly or by implication. So that your concern in this case with the basis for corporate criminal liability depends upon the question of whether the persons - and in this case, the persons in the Guardian Office in Toronto who participated in the plant operation - were the directing mind of the Church of Scientology of Toronto, within a field of operation assigned to them so that their actions and intent were the very actions and intent of the corporation itself. A corporation will only be found liable on this basis if the action taken by the directing mind was not totally in fraud of the corporation, and was, by design or result, partly for the benefit of the corporation. [Emphasis added.]

This direction fairly put the issues to the jury; similar directions were repeated frequently throughout the charge. The jury could not have been confused about the findings they had to make or the basis for the appellant's liability. This ground of appeal fails.

XII. SENTENCE

A. Introduction

The trial judge imposed a fine totalling $250,000 upon the Church of Scientology of Toronto. He imposed a fine of $100,000 in respect of the count involving the O.P.P. and a fine of $150,000 in respect of the count involving the Ministry of the Attorney General. We called on the Crown to respond to the sentence appeal.

In my view, the fine represented a fit sentence. The trial judge carefully reviewed the facts and aspects of the case that the parties put forward as aggravating and mitigating factors. I intend to deal briefly with the submissions made by Ms. Edwardh in support of the corporate appellant's claim that the sentence was unfit and that the trial judge committed a number of errors in principle. Ms. Edwardh made four principal submissions:

(i) The trial judge misconceived the gravity of the offences and therefore overemphasised the seriousness of the offences.

(ii) The trial judge erred in principle in rejecting the appellant's claim that it had shown great remorse.

(iii) The trial judge failed to treat the appellant as a discrete entity independent of the Church of Scientology International.

(iv) The trial judge placed undue emphasis on the factor of general deterrence given the unusual nature of the offence.

B. The Seriousness of the Offence

The fundamental submission with respect to the seriousness of the offence is that there was no significant interference with law enforcement or the administration of justice. As it turned out, the persons planted in the O.P.P. and the Ministry of the Attorney General were unable to obtain anything of real value to the Church or anything that impaired the functioning of these agencies. The trial judge recognized this aspect of the case. He pointed out that the count in relation to the O.P.P. was based upon the conduct of Cynthia Bake and that she was only able to obtain a document that turned out to contain "innocuous" information. The conviction concerning the Ministry of the Attorney General concerned the conduct of Janice Wheeler on three occasions. On the first occasion, she let Marion Evoy into the Ministry archives to obtain copies of correspondence between the Attorney General of Ontario and the Attorney General of the United States. On the second occasion, Ms. Wheeler turned over a Ministry file respecting the application of the appellant for authority to solemnize marriages. On the third occasion, Ms. Wheeler took Ms. Evoy into the Ministry offices. They were looking for files on the Church of Scientology but were unable to find any.

The trial judge characterized these acts as follows:

The criminal acts of Church of Scientology of Toronto were insidious attacks on two essential law enforcement agencies in this province. The integrity and effective functioning of those agencies (the Ministry of the Attorney General and the Ontario Provincial Police) are of great importance to good government in this province. The offences
threatened
such integrity and effectiveness, and I regard each of them as very serious. [Emphasis added.]

I agree with this characterization of the offences. The trial judge did not misapprehend their nature. He quite properly focused on the intended consequences of the offences. This conduct represented a deliberate attempt to undermine the effectiveness of the law enforcement agencies. The acts struck at the integrity of the public service. This was not simply an intelligence-gathering exercise. The appellant had planted its agents in these agencies so that they would be able to anticipate and counter the efforts of these agencies to enforce the law.

It was also important that these offences were not isolated instances of errors of judgment. They represented the execution of a carefully conceived plan. The agents were given special instructions to assist them in carrying out the offences. An independent part of the appellant's infrastructure was devoted to this kind of activity. The planting of agents in these law enforcement agencies was merely part of a systematic pattern of conduct on the part of the appellant. These agents were not acting for personal gain but under the belief instilled by the appellant that these acts were necessary to protect their Church.

C. Remorse

The trial judge unequivocally rejected the appellant's submission that remorse was a mitigating factor. He expressed his reasons for doing so as follows:

Next I deal with the question of remorse. I am unimpressed by the defence submission that the church has shown remorse by removing from office any individuals involved in the offences, by offering to assist the authorities in the prosecution of the wrongdoers, and by requiring the wrongdoers to perform acts of public service in an amends programme. Remorse requires an acceptance of guilt. The conduct of Church of Scientology International and Church of Scientology of Toronto, after the Church of Scientology International became aware, in July 1981, of the criminal conduct of the Guardian Office World Wide prior to 1978, and of those in local churches like Church of Scientology of Toronto who had acted on the direction of Guardian Officer World Wide, was not to accept corporate responsibility; instead, the corporation sought to have the individual wrongdoers take the blame, and to distance the corporations from them. The most telling evidence against the church, on the question of remorse, is the fact that no steps were taken to reveal the criminal conduct to the authorities until after the seizure of documents in March 1983. By that time, the detection of the criminal acts was virtually certain. And then the offer to the authorities in 1984 was to assist in the prosecution of the individuals, not to accept responsibility on the part of the church for criminal acts done by senior employees almost a decade previously.

The trial judge also rejected the submission that although the appellant had defended the case on the basis of legal defences, it had always accepted moral responsibility for the acts. He pointed out that any acceptance of moral responsibility was made on behalf of the individuals and that the appellant's position was always that it was not at fault. In this respect he noted the contents of a press release issued by the appellant following the jury verdict. The press release included the following:

Parishioners and church staff who are innocent of any crime have been punished today for acts they knew nothing about almost twenty years after the fact. Our justice system has protected unrepentant criminals who ordered or committed these acts, given them immunity, and used their testimony to assault the innocent. The result is a travesty of justice and a useless waste of more than $15 million in taxpayers' money.

I agree with the trial judge that remorse was not a mitigating factor. The appellant at no time admitted responsibility for these offences or expressed remorse for its involvement. As Ms. Pomerance pointed out in her submissions, the evidence was clear that the appellant stopped this kind of activity because the risk of discovery was putting the appellant and the Church of Scientology in jeopardy. In the years leading up to the commission of these offences, the Church had tried various illegal means in a misguided effort to protect itself from those agencies, organizations and individuals that it perceived to be its enemies. When the risk of detection became too great, a particular technique would be abandoned in favour of some better or different method. The various actions such as the "amends programme", which forced the individuals to accept personal responsibility, were mechanisms by which the appellant distanced itself from the acts committed on its behalf.

On the other hand, while I do not view remorse as a proper mitigating factor here, there were some factors in the appellant's favour. Substantial efforts were made to remove the people involved in the illegal acts from positions of power and responsibility within the organization. Important changes were made to the structure of the corporation to ensure that this kind of conduct would not be repeated. The senior officials who took over responsibility for the Church, repudiated the illegal acts and made it clear that such conduct was inconsistent with the teachings of the Church of Scientology. It is also the case that the offences relate to acts committed some 20 years ago and many of the current parishioners would have had no knowledge of those activities. In his reasons, the trial judge made reference to many of these factors and I cannot say that he did not give them the proper weight.

D. Treating the Appellant as a Discrete Entity

The appellant argues that, in effect, it is insolvent and that accordingly only a nominal fine should be imposed. It led evidence that its liabilities exceeded its assets by approximately $12 million and that it had already expended over $7 million in legal fees to defend these charges. There was evidence, however, that the Church of Scientology International had provided financial help to the appellant to assist in the payment of legal fees and other creditors. The trial judge also noted the important role played by the Church of Scientology International in directing some of the operations of the appellant. In that context, he said as follows:

Because of the role of the mother church (described as the Church of Scientology International) in controlling the local Church of Scientology of Toronto and in providing financial assistance, the corporate accused, in my judgment, is in a position analogous to that of a wholly-owned subsidiary of a large corporation. The Court must look to the size of the parent in determining the amount of the fine to be imposed.

In the unusual circumstances of this case I cannot say that the trial judge erred in taking this approach. There was evidence that a portion of the funds raised by the appellant from its parishioners and from its various activities were sent to the "mother church". While the offences were intended to benefit the appellant, they were also intended to benefit the movement as a whole. In fixing the amount of the fine, it was open to the trial judge to look to the assets of the Church of Scientology International. The trial judge also noted that there was no need for a large fine as a matter of specific deterrence and that the fine must not be "crushing or vindictive". It is apparent that he did not give undue weight to the nature of the relationship between the appellant and the International Church.

E. General Deterrence

Ms. Edwardh submits that the trial judge placed undue emphasis on general deterrence. She argues that the offences were highly unusual and thus the prevalence of the crime did not dictate a heavy deterrent penalty. She also argues that it was wrong in principle to use a religious organization as a means of deterring the public generally. The point here seems to be that it was not appropriate to impose a fine on an association that exists only to exercise protected
Charter
rights and where the fine will be paid by innocent parishioners.

In his reasons, the trial judge made it clear that he considered general deterrence to be the principal objective in determining the amount of the fine. In my view, he did not err in principle in doing so. The appellant was established as a corporation for reasons that seemed appropriate at the time. One purpose was to take advantage of the limited liability of the corporation. However, this also meant that the appellant was subject to criminal prosecution for the acts of its directing minds. I can see no principled basis for holding that general deterrence should not be a factor in fixing the sentence to be imposed. In this respect, it is proper to take into account that the appellant itself devoted considerable resources to these non-religious objects.

General deterrence did have an important role to play in fixing the size of the fine. The importance of general deterrence to a large extent follows from the seriousness of the offence to which I have already adverted. A significant fine was appropriate to encourage compliance by other entities who might otherwise adopt a similar strategy and attempt to subvert the public service and interfere with the administration of justice.

XIII. DISPOSITION

Accordingly, I would dismiss the appeals by both appellants from conviction. I would grant leave to appeal sentence by the Church of Scientology of Toronto, but dismiss the appeal.

[1]The term "alien" would seem to be an anachronism. In the
Immigration Act,
R.S.C. 1952, c. 145, "alien" is defined as a person who is not a British subject. See:
Bureau v. The King
(1931), 51 Que. K. B. 207. The Immigration Act,
R.S.C. 1985, c. I-2 makes no reference to "alien".

[2]Although not relied upon by the appellants, I have considered whether
R. v. S. (R.J.)1995 CanLII 121 (SCC), (1995), 96 C.C.C. (3d) 1 (S.C.C.) could support the position of the appellants. The accused R.J.S. was charged with break, enter and theft. The principal Crown witness was to be his alleged accomplice J.P.M. At the opening of the trial J.P.M., who was separately charged with the same offence, brought a motion to quash the subpoena on the basis that it infringed his
Charter
right to remain silent. This motion was successful and the accused was acquitted. A Crown appeal to this court was allowed. On further appeal to the Supreme Court, the Crown raised a standing issue. Iacobucci J. writing for the majority of the Court held that it was necessary to distinguish two different cases. In the first case, the privilege claim of the witness has been improperly rejected. It may be that no party would have a right to appeal the verdict on that basis. Iacobucci J. left that issue open. However, where the claim has been improperly allowed, it was open to the Crown to appeal on the basis that the evidence was improperly rejected and it was open to the accused to respond by arguing in support of a privilege that was affirmed. The accused's further appeal to the Supreme Court was but an extension of that response.

That is not the case here. The appellants' own equality rights are not at stake and they cannot acquire standing to make the initial application by attempting to rely upon the standing that some potential juror might have had to start the process.

[3]It is unnecessary to decide whether the intervener Laws has made out that kind of impact. That issue should be left to the court hearing his appeal. Both Laws and the federal Crown, the respondent in the
Laws
appeal, urged us to avoid deciding that issue in this appeal. The Attorney General of Canada submitted that "the issue of race as a quality of representativeness, not raised by the appellants in this appeal, should be left for the Court in the Laws appeal." I agree. The issue is highly complex and the relationship between ss. 11
and 15
in the context should be developed on the basis of a proper record and by parties with standing to raise the issue. See comments of C. Petersen, "Institutionalized Racism: The Need for Reform of the Criminal Jury Selection Process" (1993), 38 McGill L.J.
147, especially at 163-65 where the author looks at the question of jury representativeness in the context of the s. 15
jurisprudence from the point of view of the victim and the potential juror, as well as the accused.

[4] His point appears to be this. While excluding non-citizens only reduces the probability of a black person being on any particular jury panel by less than 1%, since the number of blacks on any particular panel is already small as compared to whites, any increase in the likelihood of there being a black on the panel is a benefit to the black accused. Equally, any decrease in the probability of a black being on the panel is a disadvantage to a black accused. These arguments are best left to the
Laws
appeal where it will be for the court hearing that case to determine whether Laws' equality rights have been violated even if there is no violation of his s. 11
rights.